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DRAFT
DECLARATION
OF
COVENANTS, CONDITIONS AND RESTRICTIONS
FOR
THE RESERVE AT ELK MEADOWS PUD
TABLE OF CONTENTS
ARTICLE 1.
GENERAL 1
1.1 Common Interest Community 1
1.2 Purposes of Declaration. 1
1.3 Declaration. 1
ARTICLE 2.
DEFINITIONS 2
2.1 Act 2
2.2 Administrative Functions. 2
2.3 Allocated Interests 2
2.4 Annex able Property 3
2.5 Articles of Incorporation. 3
2.6 Assessment. 3
2.7 Association 3
2.8 Association Documents 3
2.9 Association Functions 3
2.10 Association Properties. 4
2.11 Board of Directors 4
2.12 Budget. 4
2.13 Building Envelope. 4
2.14 Bylaws 4
2.15 Common Area. 4
2.16 Common Assessment. 4
2.17 Common Expenses 5
2.18 Common Interest Community 6
2.19 County 6
2.20 Declarant 6
2.21 Declaration 6
2.22 Deed of Trust 6
2.23 Design Review Committee 7
2.24 improvement 7
2.25 Improvement to Property 7
2.26 irrigation Assessment. 7
2.27 Irrigation System 7
2.28 Lease 7
2.29 Lot 7
2.30 Maintenance Funds 7
2.31 Management Agreement 7
2.32 Managing Agent 8
2.33 Member 8
2.34 Mortgage 8
2.35 Mortgagee 8
2.36 Mortgagor 8
2.37 Mountain Park 8
2.38 Notice and Hearing 8
2.39 Notice of Completion 8
2.40 Occupant 8
2.41 Owner 8
2.42 Permitted Exceptions 9
2.43 Person 9
2.44 Planned Community 9
2.45 Plat 9
2.46 Public Open Space 9
2.47 Record or Recorded 9
2.48 Reimbursement Assessment 9
2.49 Rules and Regulations 9
2.50 Sewer Assessment 9
2.51 Special Assessment 9
2.52 Successor Declarant 10
2.53 Supplemental Declaration 10
2.54 Supplemental Plat 10
2.55 Wastewater Treatment Facility 10
2.56 Water Assessment 10
ARTICLE 3.
GENERAL RESTRICTIONS APPLICABLE TO
COMMON INTEREST COMMUNITY 10
3.1 Maintenance of Common Interest Community 10
3.2 Property Uses 11
3.3 Construction Type 11
3.4 Building Envelopes 11
3.5 No Noxious or Offensive Activity 11
3.6 Annoying Sounds or Odors 11
3.7 No Hazardous Activities 11
3.8 Outside Burning; Fire Hazards 12
3.9 No Firearms or Hunting 12
3.10 No Unsightliness 12
3.11 Yards 12
3.12 Restrictions on Garbage and Trash 12
3.13 Animals 12
3.14 No Temporary Structures 13
3.15 Restriction on Pipes and Utility Lines . 13
3.16 Restrictions on Signs and Advertising 13
3.17 Restrictions on Mining or Drilling 13
3.18 Wells 13
3.19 Maintenance of Drainage 13
3.20 Compliance with Insurance Requirements 14
3.21 Compliance with Laws 14
3.22 Restrictions on Resubdivision of Lots 14
3.23 Consolidation of Lots 14
3.24 Water Systems and Wastewater Treatment 14
3.25 Restrictions on Water Systems 14
3.26 Restoration in the Event of Damage or Destruction 15
3.27 Storage 15
3.28 Vehicle Repairs 15
3.29 Storage of Gasoline and Explosives, Etc 15
3.30 Vehicle Parking, Storage, Operation and Repair . 15
3.31 Fences 16
3.32 Air Conditioning and Heating Equipment/Solar Collecting Devices 16
3.33 Leases 17
3.34 Easements., Utilities 17
3.35 Landscaping 18
3.36 Maintenance of Common Areas 18
3.37 Swimming Pools and Pool Equipment 18
3.38 Outside Lighting 19
3.39 Fire Protection 19
3.40 Requirements for Mitigation of Wildfire 19
3.41 Excavations 19
3.42 Lakes 19
3.43 Cam in and Picnicking19
3.44 Irrigation Systems and Ditch Laterals 19
3.45 Irrigation of Association Properties 20
3.46 Antenna and Satellite Dishes 20
3.47 Restrictions to Mitigate Impacts on Wildlife 21
ARTICLE 4.
ARCHITECTURAL APPROVAL 21
4.1 Approval of Improvements Required 21
4.2 Improvement to Property Defined 21
4.3 Membership of Committee 21
4.4 Establishment of Subcommittees 22
4.5 Address of Design Review Committee 22
4.6 Submission of Plans 22
4.7 Criteria for Approval 22
4.8 Design Guidelines 23
4.9 Design Review Fee 23
4.10 Decision of Committee 23
4.11 Failure of Committee to Act on Plans 23
4.12 Completion of Work After Approval 24
4.13 Notice of Completion 24
4.14 Inspection of Work 24
4.15 Notice of Satisfactory Completion of Improvement to Property 24
4.16 Notice of Noncompliance _ 24
4.17 Performance Guaranty for Noncompliance or Incompletion 25
4.18 Failure of Committee to Act After Completion 26
4.19 Appeal to Board of Directors of Finding of Noncompliance 26
4.20 Correction of Noncompliance 26
4.21 No Implied Waiver or Estoppel 26
4.22 Committee Power to Grant Variances 27
4.23 Meetings of Committee 27
4.24 Records of Actions 27
4.25 Estoppel Certificates 27
4.26 Nonliability of Committee Action 27
4.27 Construction Period Exception 28
ARTICLE 5.
ASSOCIATION PROPERTIES 28
5.1 Division Into Lots 28
5.2 Delineation of Lot Boundaries 28
5.3 Member's Rights of Use and Enjoyment Generally 28
5.4 Right of Association to Regulate Use 29
5.5 Inseparability of Lot 29
5.6 Description of a Lot 29
5.7 No Partition of Association Properties 30
5.8 Redesignation of Common Areas 30
5.9 Liability of Owners for Damage 30
5.10 Association Duties if Damage, Destruction. or Required Improvements
31
5.11 Delegation of Management and Maintenance Duties 31
5.12 Limitation Upon Liability of Association 31
5.13 Association Powers in the Event of Condemnation 31
5.14 Title to Association Properties on Dissolution of Association 32
ARTICLE 6.
DECLARANT'S RESERVED RIGHTS 32
6.1 Completion of Improvements 33
6.2 Sales, Marketing and Management 33
6.3 Merger 34
6.4 Declarant Control of Association 34
6.5 Declarant's Rights to Grant and Create Easements 34
6.6 Annexation of Additional Properties 34
6.7 Annexation Procedure 34
6.8 Annexation of Additional Unspecified Real Estate 35
6.9 Withdrawal Rights and Procedure 35
6.10 Subdivision of Blocks or Lots or Units; Conversions of Lots or Units into
Master Common Area 36
6.11 Effect of Expansion or Contraction 36
6.12 Other Reserved Development Rights 37
6.13 Transfer of Declarant's Reserved Rights 37
6.14 Termination of Declarant's Reserved Rights 37
ARTICLE 7.
ASSOCIATION OPERATION 38
7.1 Association 38
7.2 Association Board of Directors 38
7.3 Membership in Association 39
7.4 Voting Rights of Members 39
7.5 Declarant Control 39
7.6 Termination of Contracts and Leases of Declarant 40
7.7 Determination of Member Voting Privileges 40
7.8 Registration of Owners 40
ARTICLE 8.
DUTIES AND POWERS OF ASSOCIATION 40
8.1 General Duties and Powers of Association 40
8.2 Duty to Accept Property and Facilities Transferred by Declarant 40
8.3 Duty to Manage and Care for Association Properties 41
8.4 Duty to Pay Taxes 41
8.5 Duty to Maintain Casualty Insurance 41
8.6 Duty to Maintain Liability Insurance 42
8.7 General Provisions Respecting Insurance 42
8.8 Maintenance of Fidelity Insurance 43
8.9 Other Insurance and Bonds 43
8.10 Insurance Proceeds 43
8.11 Nonliability of Association or Board of Directors 43
8.12 Insurance Claims 44
8.13 Benefit 44
8.14 Other Insurance to be Carried by Owners or Occupants 44
8.15 Repair and Replacement 44
8.16 Cancellation 45
8.17 Duty to Prepare Budjets 45
8.18 Duty to Levy and Collect Assessments 45
8.19 Duty to Keep Association Records 45
8.20 Duties with Respect to Design Review Committee Approvals 45
8.21 Power to Acquire Property and Construct Improvements 45
8.22 Power to Adopt Rules and Regulations 46
8.23 Power to Enforce Declaration and Rules and Regulations 46
8.24 Power to Grant Easements 47
8.25 Power to Convey and Dedicate Property to Governmental Agencies .. 47
8.26 Power to Borrow Money and Mortgage Property 47
8.27 Power to Engage Employees, Agents, and Consultants 47
8.28 General Corporate Powers 47
8.29 Power to Provide Association Functions 48
8.30 Power to Provide Special Services to Members 48
8.31 Power to Charge for Association Properties, Facilities and Services 48
8.32 Power to Employ Managers 48
8.33 Association as Attorney -In -Fact 48
8.34 Powers Provided by Law 49
ARTICLE 9.
ASSESSMENTS, BUDGETS AND FUNDS 49
9.1 Maintenance Funds to be Established 49
9.2 Establishment of Other Funds 49
9.3 Deposit of Common Assessments to Maintenance Funds 50
9.4 Other Deposits to Maintenance Funds 50
9.5 Disbursements from Maintenance Funds 50
9.6 Authority for Disbursements 50
9.7 Assessment Obligation 50
9.8 Common Assessments 51
9.9 Apportionment of Common Assessments 51
9.10 Funding of Reserve Funds 51
9.11 Supplemental Common Assessments 51
9.12 Annual Budgets 52
9.13 Commencement of Common Assessments/Common Interest Communities
52
9.14 Payment of Assessment 52
9.15 Failure to Fix Assessment 52
9.16 Special Assessments 53
9.17 Reimbursement Assessments 53
9.18 Water Assessments 53
9.19 Irrigation Assessments. 53
9.20 Sewer Assessments. 53
9.21 Declarant's Obligation to Pay Assessments 53
9.22 Late Charges and Interest 54
9.23 Attribution of Payments 54
9.24 Notice of Default 54
9.25 Remedies to Enforce Assessments 54
9.26 Lawsuit to Enforce Assessments 55
9.27 Successor's Liability for Assessments 55
9.28 Lien to Enforce Assessments 55
9.29 Estoppel Certificates 55
9.30 Assessments for Tort Liability 56
9.31 No Offsets 56
9.32 Liens 56
ARTICLE 10.
SPECIAL PROVISIONS 56
10.1 Air Quality Restrictions 56
10.2 Duration and Enforceability 57
ARTICLE 11.
MISCELLANEOUS 57
11.1 Term of Declaration 57
11.2 Declarant's Rights Regarding Transfer 57
11.3 Amendment of Declaration by Declarant 57
11.4 Amendment of Declaration by Members 58
11.5 Amendment of Articles and Bylaws 58
11.6 Alternative Dispute Resolution 58
11.7 Special Rights of First Mortgagees 58
11.8 Priority of First Mortgage Over Assessments 59
11.9 First Mortgage Right to Pay Taxes and Insurance Premiums 59
11.10 Association Right to Mortgage Information 59
11.11 Notices 59
11.12 Persons Entitled to Enforce Declaration 59
11.13 Violations Constitute a Nuisance 60
11.14 Enforcement of Self -Help 60
11.15 Violations of Law 60
11.16 Remedies Cumulative 60
11.17 Costs and Attorneys' Fees 60
11.18 Limitation on Liability 60
11.19 No Representations or Warranties 60
11.20 Liberal Interpretation 60
11.21 Governing Law 61
11.22 Conflict of Provisions 61
11.23 Colorado Common Interest Ownership Act 61
11.24 Nonwaiver 61
11.25 Severability 61.
11.26 Number and Gender 61
11.27 Captions for Convenience 61
11.28 Exhibits 61
11.29 Mergers or Consolidations 61
11.30 Disclaimer Regarding Safety 62
DRAFT
DECLARATION OF COVENANTS, CONDITIONS, AND RESTRICTIONS
FOR
THE RESERVE AT ELK MEADOWS PUD
THIS DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR
THE RESERVE AT ELK MEADOWS PUD (this "Declaration") dated as of the day of May
2006, shall be effective upon recordation and is made by Reserve at Elk Meadows, LLC, an Illinois
limited liability company authorized to do business in Colorado (the "Declarant").
ARTICLE 1.
GENERAL
1.1 Common Interest Community. Declarant is the owner of that certain parcel of land
located in the County of Garfield, Colorado, more particularly described on Exhibit "A", attached
hereto and incorporated herein by reference (the "Common Interest Community"). Declarant intends
to develop the Common Interest Community as a high quality Planned Community of single family
residential Lots. There shall be a maximum of one hundred and eighty-nine (189) Lots within the
Common Interest Community.
1.2 Purposes ofDeclaration. This Declaration is executed (a) in furtherance of a common
and general plan for the Common Interest Community; (b) to protect and enhance the quality, value,
desirability and attractiveness of the Common Interest Community; (c) to provide for an Association
as a vehicle to hold, maintain, care for and manage Association Properties, including internal
landscaped areas which will benefit all Owners of Lots; (d) to define the duties, powers and rights
of the Association; (e) to define certain duties, powers and rights of Owners of Lots within the
Common Interest Community; and (f) to comply with and effectuate the terms and provisions of the
Act.
1.3 Declaration. Declarant, for itself, its successors and assigns, hereby declares that the
Common Interest Community and any property which may become subject to this Declaration in the
manner hereinafter provided, and each part thereof, shall from the date the same becomes subject
to this Declaration, be owned, held, transferred, conveyed, sold, leased, rented, hypothecated,
encumbered, used, occupied, maintained, altered and improved subject to the covenants, conditions,
restrictions, limitations, reservations, exceptions, equitable servitudes and other provisions set forth
in this Declaration, for the duration hereof, all of which are declared to be part of, pursuant to, and
in furtherance of a common and general plan of development, improvement, enhancement and
protection of the Common Interest Community. The provisions of this Declaration are intended to
and shall run with the land, and until their expiration in accordance with the terms hereof, shall bind,
be a charge upon and inure to the mutual benefit of (a) the Common Interest Community, and each
part or parcel thereof, (b) Declarant and its successors and assigns, (c) the Association and its
successors and assigns, and (d) all Persons having or acquiring any right, title or interest in any
property which is or becomes part of the Common Interest Community, or any part or parcel thereof,
or any Improvement thereon, and their heirs, personal representatives, successors and assigns. This
Declaration of Covenants Conditions and Restrictions for The Reserve at Elk Meadows PUD Page 1 of 63
Declaration shall be Recorded in the County and shall be indexed in the grantee's index in the name
of the Declarant and the Association and in the Grantor's Index in the name of each person or entity
executing this Declaration.
ARTICLE 2.
DEFINITIONS
Unless otherwise expressly provided herein, the following words and phrases when used in
this Declaration shall have the meanings hereinafter specified.
2.1 Act. "Act" shall mean the Colorado Common Interest Ownership Act, C.R.S. 38-
33.3-101, et. seq., as the same may be amended from time to time.
2.2 Administrative Functions. "Administrative Functions" shall mean all functions as
are necessary and proper under this Declaration and shall include, without limitation, providing
management and administration of the Association; providing architectural review services under
Article 4 hereof; incurring reasonable attorneys' fees and accountants' fees; obtaining errors and
omissions insurance for officers, directors and agents of the Association; obtaining fidelity bonds
for any Person handling funds of the Association; paying taxes levied against the Association
Properties; incurring filing fees, recording costs, and bookkeeping fees; obtaining and maintaining
offices and office furniture and equipment; and performing other such reasonable and ordinary
administration tasks associated with operating the Association as determined by the Board of
Directors from time to time.
2.3 Allocated Interests. "Allocated Interests" means the Common Expenses liability and
the votes in the Association allocated to each Lot which interests are allocated as follows:
2.3.1 The Common Expenses liability for each Lot is calculated on the basis of a
fraction, the numerator of which is one (1) and the denominator of the fraction is the total
number of Lots in the Common Interest Community as of the date of the calculation. The
denominator of the fraction may be increased from time to time by the Declarant upon the
addition of Lots to the Common Interest Community which can be conveyed to third parties.
Such fraction is then multiplied by the Common Expenses or the Common Assessment or
Special Assessment in question to determine that Lot's share thereof.
2.3.2 One (1) vote in the Association is allocated to each Lot in the Common
Interest Community.
2.3.3 The foregoing allocations may not discriminate in favor of Lots owned by
Declarant or an affiliate of Declarant.
2.3.4 If Lots are added to or withdrawn from the Common Interest Community, (i)
the Common Expenses liability for each Lot shall be reallocated on the basis of the formula
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set forth in Section 2.3.1 above, and (ii) one vote in the Association shall continue to be
allocated to each Lot in the Common Interest Community following the addition or
withdrawal of such Lots.
The Allocated Interests for the Common Interest Community are specifically set forth on Exhibit B
attached hereto and made a part hereof by this reference, as said Exhibit B may be amended from
time to time.
2.4 Annexable Property. "Annexable Property" shall mean that real property which is
more particularly described on Exhibit C, attached hereto and incorporated herein by this reference,
and may include such other property which may be annexed to and made a part of the Common
Interest Community, as more particularly provided herein.
2.5 Articles of Incorporation. "Articles of Incorporation" or "Articles" shall mean the
Articles of Incorporation of The Reserve at Elk Meadows Homeowners Association, which have
been or will be filed with the office of the Secretary of State in the State of Colorado, as the same
may be amended from time to time.
2.6 Assessment. "Assessment" or "Assessments" shall mean the Common Assessment,
Special Assessment, Reimbursement Assessment, Water Assessment, Sewer Assessment or
Irrigation Assessment levied pursuant to Article 9 below. Assessments are also referred to as a
Common Expense Liability under the Act.
2.7 Association. "Association" shall mean The Reserve at Elk Meadows Homeowners
Association, a Colorado nonprofit corporation, and its successors and assigns. The Association acts
through its Board of Directors unless a vote of the Owners is otherwise specifically required by this
Declaration or by the Articles of Incorporation or Bylaws of the Association
2.8 Association Documents. "Association Documents" shall mean the basic documents
creating and governing the Common Interest Community, including, but not limited to, this
Declaration, the Articles of Incorporation and Bylaws of the Association, and any procedures, rules,
regulations, or policies relating to the Common Interest Community adopted under such documents
by the Association or the Board of Directors.
2.9 Association Functions. "Association Functions" shall mean and include, but not be
limited to, the act ofproviding, installing, operating, administering, managing, and overseeing public
utilities, services, and functions for the benefit of Owners, including repairs, replacements and
maintenance obligations commonly associated with municipal or other local governmental or quasi -
governmental organizations, including, without limitation, repair and maintenance of streets,
sidewalks, bicycle and pedestrian paths and walkways; animal, vegetation, insect, and pest control;
television service; parking facilities; public transportation facilities, including paths and trails; street
cleaning and snow removal; signage, including entry monuments; lighting, including seasonal
lighting; project and perimeter fencing; landscape walls, landscaping services and facilities; drainage
facilities, including retention and detention ponds; trash and solid waste disposal services, including
Declaration of Covenants Conditions and Restrictions for The Reserve at Elk Meadows PUD Page 3 of 63
recycling programs; operation, maintenance and repair of utility services, including, without
limitation, irrigation and domestic water service and wastewater treatment service, and such other
services, functions and activities, as are deemed appropriate by the Board of Directors. The
foregoing list shall not be deemed to be a representation by Declarant of services or facilities which
will be available for use of the Owners.
2.10 Association Proper( i es. "Association Properties" shall mean: (a) all real and personal
property, including Improvements, now or hereafter owned by the Association; (b) all Common
Areas, now or hereafter owned by the Association; (c) all water, water rights, facilities infrastructure,
and any other improvements associated with the Domestic Water System, Irrigation System and
Wastewater Treatment Facility now or hereafter owned by the Association; or (d) all real or personal
property with respect to which the Association holds an easement or license for the use, care, or
maintenance thereof, or for which the Association has a right or duty to maintain, and which property
is held for the common use and enjoyment of the Members pursuant to the terms and provisions of
this Declaration. As of the date of this Declaration, the Association Properties are subject to the
Permitted Exceptions.
2.11 Board of Directors. "Board of Directors" or "Board" shall mean the Board of
Directors of the Association.
2.12 Budget. "Budget" shall mean a written itemized estimate of the Common Expenses
to be incurred by the Association in performing its functions under this Declaration and prepared
pursuant to Section 9.12 of this Declaration.
2.13 Building Envelope. "Building Envelope" shall mean that portion of each Lot which
is designated on the Plat as suitable for construction of habitable living space thereon. As more fully
provided herein, all Improvements to be constructed on a Lot, with the exception of Improvements
which are necessary to facilitate ingress to and egress from a Lot or Improvements which are
otherwise expressly authorized by the Design Review Committee, shall be located within the
Building Envelope designated for such Lot.
2.14 Bylaws. "Bylaws" shall mean the Bylaws of the Association which have been or will
be adopted by the Board of Directors of the Association, as the same may be amended from time to
time.
2.15 Common Area. "Common Area" shall mean any portions of the Common Interest
Community designated on the Plat as Common Area or Open Space and which is owned or
maintained by the Association for the common use and enjoyment of the Owners, including, but not
limited to, all streets, lanes, alleys, rights-of-way, roads, entryways, ponds, entry features, sidewalks,
pathways, trails, gardens, pastures or other open space, and such other easements for the use and
benefit of the Owners as may be provided in this Declaration.
2.16 Common Assessment. "Common Assessment" shall mean the assessments made for
the purpose of covering the portion of the annual expense of operating and administering the
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Association, including, but not limited to, Common Expenses and expenses incurred in connection
with certain authorized functions of the Association the costs of which are not otherwise provided
for herein, which are to be paid by each Owner to the Association for the purposes provided herein
and charged to such Owner and to the Lot of such Owner.
2.17 Common Expenses. "Common Expenses" shall mean any expenditures made or
liabilities incurred by or on behalf of the Association, together with any allocations to reserves,
including, but not limited to, the following:
2.17.1 The cost of maintenance, management, operation, snowplowing, repair and
replacement of the Association Properties, including, but not limited to, the Common Areas,
Public Open Space including the Mountain Park, Domestic Water System, Irrigation System,
Wastewater Treatment Facility, and inspection, and of all other parts of the Common Interest
Community which are managed or maintained by the Association or a Managing Agent;
2.17.2 The cost of maintaining and repairing structural elements of the Common
Areas including any structures, sidewalks, walkways, driveways, fencing and trash bins
within the Common Interest Community, and reasonable reserves for any of such costs;
2.17.3 The cost of maintaining, replacing, and improving the landscaping on the
Common Areas;
2.17.4 The cost of improvements constructed from time to time by the Association
on or in connection with the Common Areas, if such costs were included within a duly
adopted Budget;
2.17.5 The cost of management and administration of the Association, including,
but not limited to, compensation paid by the Association to managers, accountants, attorneys
and employees, and/or costs provided to be paid by the Owners in accordance with the terms
of this initial Declaration pursuant to the respective Management Agreements, if any, for the
operation, management, and/or maintenance of the Common Interest Community;
2.17.6 The cost of insurance maintained by the Association as required or permitted
herein;
2.17.7 The cost of utilities and services which are provided to the Association or
the Common Interest Community or parts thereof and not individually metered or assessed
to Lots, and other services which generally benefit and enhance the value and desirability of
the Common Interest Community;
2.17.8 Reasonable reserves for contingencies, replacements, and other proper
purposes as deemed appropriate by the Board of Directors to meet anticipated costs and
expenses including, but not limited to, maintenance, repair and replacement of Common
Areas which must be maintained, repaired or replaced on a periodic basis;
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2.17.9 Taxes paid by the Association;
2.17.10 The cost incurred by any committees that may be established from
time to time by the Board of Directors and compensation that may be paid by the Association
to members of such committees;
2.17.11 All expenses expressly declared to be Common Expenses by this
Declaration, all expenses lawfully determined to be Common Expenses by the Board of
Directors, and all expenses agreed upon as Common Expenses by the Members of the
Association; and
2.17.12 Other expenses incurred by the Association for any reason whatsoever
in connection with the Common Areas, or the cost of any other item or service provided or
performed by the Association pursuant to any of the Association Documents or in furtherance
of the purposes of the Association or in the discharge of any duties or powers of the
Association.
2.18 Common Interest Community. "Common Interest Community" shall mean the real
property described in Exhibit "A" attached hereto, subject to the Permitted Exceptions, together with
all Improvements and other amenities now or hereafter located thereon, and together with all
easements, rights, appurtenances and privileges belonging or in any way pertaining thereto.
2.19 County. "County" shall mean Garfield County, Colorado.
2.20 Declarant. "Declarant" shall mean Reserve at Elk Meadows, LLC, an Illinois limited
liability company authorized to do business in Colorado, its successors, assigns and affiliates. A
Person shall be deemed to be a "successor and assign" of Reserve at Elk Meadows, LLC, as
Declarant, only if specifically designated in a duly Recorded instrument as a successor or assign of
Declarant under this Declaration and shall be deemed a successor and assign of Declarant only as
to the particular rights or interests of Declarant under this Declaration which are specifically
designated in the written instrument. However, a successor to Reserve at Elk Meadows, LLC by
consolidation or merger shall automatically be deemed a successor or assign of Reserve at Elk
Meadows, LLC, as Declarant under this Declaration. The term "affiliate of Declarant" shall have
the meaning set forth in Section 38-33.3-103(1) of the Act.
2.21 Declaration. "Declaration" shall mean this Declaration of Covenants, Conditions and
Restrictions for The Reserve at Ellc Meadows PUD, together with any supplement or amendment to
this Declaration, recorded by Declarant in the Office of the Clerk and Recorder of Garfield County,
Colorado.
2.22 Deed of Trust. "Deed of Trust" shall have the same meaning as a Mortgage.
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2.23 Design Review Committee. "Design Review Committee" shall mean the Committee
provided for in Article 4 of this Declaration.
2.24 Improvement. "Improvement" shall mean all structures and any appurtenances thereto
of every type or kind, including, but not limited to, dwelling units, buildings, outbuildings, barns,
swimming pools, patio covers, awnings, painting of any exterior surfaces of any visible structure,
additions, walkways, outdoor sculptures or artwork, sprinkler and utility pipes, garages, carports,
roads, driveways, parking areas, fences, screening walls, retaining walls, stairs, decks, fixtures,
landscaping, hedges, windbreaks, plantings, planted trees and shrubs, poles, signs, exterior tanks,
solar equipment, exterior air conditioning and water softener fixtures.
2.25 Improvement to Property. "Improvement to Property" shall mean any Improvement,
change, alteration or addition to any property within the Common Interest Community.
"Improvement to Property" shall include, but not be limited to those improvements more particularly
described in Section 4.2 of this Declaration.
2.26 Irrigation Assessment. "Irrigation Assessment" shall mean a service charge against
a particular Owner and his Lot for the purpose of compensating the Association for supplemental
irrigation water obtained from the Irrigation System for use upon the individual Owner's Lot.
2.27 Irrigation System. "Irrigation System" shall mean all of the water, water rights, ditch
rights, facilities and improvements now or hereafter owned by the Association for irrigation
purposes. The Irrigation System shall be used for the irrigation of Association Properties, including
Common Areas, and may be used for the irrigation of Lots.
2.28 Lease. "Lease" shall mean and refer to any agreement for the leasing or rental of a
dwelling unit located on a Lot.
2.29 Lot. "Lot" shall mean any lot within the Common Interest Community which is
shown upon any Recorded Plat, Supplemental Plat, or any other parcel of land which may be sold
or conveyed without violation of the provisions of Colorado law pertaining to the subdivision of
land. For purposes of conforming the terms and provisions of this Declaration to the terms and
conditions of the Act, the term "Lot" shall be analogous to the term "Unit," as that term is defined
in the Act. The term "Lot" shall include each individual unit within a duplex unit created within the
Common Interest Community.
2.30 Maintenance Funds. "Maintenance Funds" shall mean the accounts into which the
Board shall deposit monies paid to the Association and from which disbursements shall be made in
the performance of the functions of the Association pursuant to Article 8 hereof.
2.31 Management Agreement. "Management Agreement" shall mean any agreement or
arrangement entered into for purposes of discharging the responsibilities of the Board of Directors
relative to the operation, maintenance, and management of the Common Interest Community.
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2.32 Managing Agent. "Managing Agent" shall mean a person, firm, corporation or other
entity employed or engaged as an independent contractor pursuant to a Management Agreement to
perform management services for the Common Interest Community.
2.33 Member. "Member" shall refer to the members of The Reserve at Elk Meadows
Homeowners Association and shall mean the Person or, if more than one, all Persons collectively
who constitute the Owner of a Lot.
2.34 Mortgage. "Mortgage" shall mean any mortgage or deed of trust or other such
instrument, given by the Owner of a Lot, encumbering the Lot to secure the performance of an
obligation or the payment of a debt and which is required to be released upon performance of the
obligation or payment of the debt. The term "Deed of Trust" when used herein shall be synonymous
with the term "Mortgage".
2.35 Mortgagee. "Mortgagee" shall mean a mortgagee under a Mortgage or a beneficiary
under a Deed of Trust, as the case may be, and the assignees of such mortgagee.
2.36 Mortgagor. "Mortgagor" shall mean the Person who mortgages his or its property to
another (i.e., the maker or grantor of a Mortgage). The term "Mortgagor" shall include a trustor or
grantor under a Deed of Trust.
2.37 Mountain Park. "Mountain Park" shall mean the real property described on Exhibit
attached hereto which has been dedicated by the Declarant as publicly accessible open space
and parkland.
2.38 Notice and Hearing. "Notice and Hearing" shall mean a written notice and public
hearing before the Board of Directors or a Tribunal, as defined in the Bylaws, appointed by the
Board, in the manner provided in the Bylaws.
2.39 Notice of Completion. "Notice of Completion" shall mean written notice to the
Design Review Committee of the completion of any Improvement to Property pursuant to Article
4of this Declaration.
2.40 Occupant. "Occupant" shall mean any person who is a tenant on a Lot, pursuant to
a Lease with the Owner thereof, or any person who is present within the Common Interest
Community as a family member, guest, agent, licensee, or invitee of an Owner, an Occupant, the
Association, or a Managing Agent.
2.41 Owner. "Owner" shall mean the Person, including Declarant, or, if more than one,
all Persons collectively, who hold fee simple title of Record to a Lot, including sellers under
executory contracts of sale and excluding buyers thereunder. The term "Owner" shall be analogous
to the term "Unit Owner," as that term is defined in the Act.
Declaration of Covenants Conditions and Restrictions for The Reserve at Elk Meadows PUD Page 8 of 63
2.42 Permitted Exceptions. "Permitted Exceptions" shall mean all conditions, easements,
liens, licenses, reservations, restrictions and other items of record which encumber the title to all or
any part of the Common Interest Community as of the date this Declaration is recorded, which are
enumerated on Exhibit E attached hereto and incorporated herein by this reference. This Declaration
shall be subject to such Permitted Exceptions.
2.43 Person. "Person" shall mean a natural person, a corporation, a limited liability
company, a partnership, an association, a trust or any other entity or combination thereof capable of
holding title to real property pursuant to the laws of the State of Colorado.
2.44 Planned Community. "Planned Community" shall have the same meaning as set forth
in the Act.
2.45 Plat. "Plat" shall mean and include the land survey plat (and any amendments thereto)
which depicts all or a portion of the Common Interest Community and which further depicts and
locates thereon the location of Lots, Building Envelopes, Common Areas, and such other items as
may be required by the Act. The Plat, and any amendments or supplements thereto, are hereby
incorporated herein and made a part hereof by reference. For the purposes of this Declaration, the
term "Plat" shall also mean and include such Supplemental Plat Recorded by Declarant for the
purposes of annexing any additional property to the Common Interest Community.
2.46 Public Open Space. "Public Open Space" shall mean that area designated on the Plat
as Community Facilities Open Space District.
2.47 Record or Recorded. "Record" or "Recorded" shall mean the filing for record of any
document in the office of the Clerk and Recorder of the County.
2.48 Reimbursement Assessment. "Reimbursement Assessment" shall mean a charge
against a particular Owner and his Lot for the purpose of curing or enforcing any violation, directly
attributable to the Owner, of the Declaration or the Rules and Regulations, pursuant to Section 9.17
hereof, together with late charges and interest as provided for herein. Reimbursement Assessment
shall include without limitation any Common Expense caused by the misconduct of any Owner or
of such Owner's Occupants.
2.49 Rules and Regulations. "Rules and Regulations" shall mean rules and regulations
adopted by the Board of Directors, as provided in Section 8.22 of this Declaration.
2.50 Sewer Assessment. [Define if applicable]
2.51 Special Assessment. "Special Assessment" shall mean a charge against each Owner
and his Lot representing a portion of the costs of the Association for the purpose of funding
construction, capital repairs, maintenance, replacements, and Improvements within the Common
Interest Community, the costs of which were not included in a Common Assessment, or for excess
Declaration of Covenants Conditions and Restrictions for The Reserve at Elk Meadows PUD Page 9 of 63
repair costs or other extraordinary expenses, or for funding any operating deficit of the Association,
or for any other purpose authorized by the Board of Directors from time to time as provided herein.
2.52 Successor Declarant. "Successor Declarant" shall mean any party or entity to whom
Declarant assigns any or all of its rights, obligations, or interest as Declarant, as evidenced by an
assignment or deed of record executed by both Declarant and the transferee or assignee and
Recorded, designating such party as Successor Declarant. Upon Recording, Declarant's rights and
obligations under this Declaration shall cease and terminate to the extent provided in such document.
2.53 Supplemental Declaration. "Supplemental Declaration" shall mean a written
instrument containing covenants, conditions, restrictions, reservations, easements, or equitable
servitude, or any combination thereof, which may be Recorded in accordance with Section 6.7 ofthis
Declaration.
2.54 Supplemental Plat. "Supplemental Plat" shall mean and include any land survey plat
which is Recorded by Declarant for the purpose of annexing the property described therein to the
Common Interest Community.
2.55 Wastewater Treatment Facility. [Define if applicable]
2.56 Water Assessment. "Water Assessment" shall mean a proportionate charge against
each Owner and his Lot representing a portion of the costs of the Association for the purpose of
operating, maintaining and repairing the Domestic Water System.
ARTICLE 3.
GENERAL RESTRICTIONS APPLICABLE TO
COMMON INTEREST COMMUNITY
All real property within the Common Interest Community shall be held, used, and enjoyed
subject to the following limitations and restrictions, and subject to exemptions of Declarant set forth
in this Declaration. The strict application of the following limitations and restrictions in any specific
case may be modified or waived in whole or in part by the Design Review Committee if such strict
application would be unreasonably or unduly harsh under the circumstances. Any such modification
or waiver must be in writing or be contained in written guidelines or rules promulgated by the Design
Review Committee. Violation of this Article by an Owner shall permit the Association, after Notice
and Hearing, to enter on the Lot of the Owner and cure the violation or cause compliance with this
provision and to levy and collect a Reimbursement Assessment for the costs and expenses of the
Association in so doing; provided, however, that there shall be no entry into the interior of an
Improvement intended for human occupancy without the consent of the Owner thereof unless a clear
emergency exists.
3.1 Maintenance of Common Interest Community. No property within the Common
Interest Community shall be permitted to fall into disrepair, and all property within the Common
Interest Community, including any Improvements, landscaping, and weed maintenance and
Declaration of Covenants Conditions and Restrictions for The Reserve at Elk Meadows PUD Page 10 of 63
management thereon, shall be kept and maintained in a clean, attractive, and sightly condition and
in good repair. Unless otherwise provided herein, maintenance, repair, and upkeep of each Lot, shall
be the responsibility of the Owner of the Lot. Maintenance, repair and upkeep of Association
Properties shall be the responsibility of the Association. The Association and the Board ofDirectors,
and their respective agents, employees and contractors, are hereby granted perpetual, non-exclusive
easements to enter upon the Lots as may be necessary or appropriate to perform the Association
Functions described in this Declaration.
3.2 Property Uses. Except as otherwise provided in Article 6 hereof, all Lots shall be
used for private residential purposes and no dwelling unit erected or maintained within the Common
Interest Community shall be used or occupied for any purpose other than for single-family dwellings.
Notwithstanding the foregoing, business activities associated with the sale of Lots or residences
constructed thereon shall be allowed. In addition, in-home businesses or occupations not involving
the servicing of customers or employees, other than the Owners, shall be allowed, provided such
activities are permissible under Garfield County zoning ordinances, conducted solely within the
residence and do not create or result in any nuisance or any unreasonable, unwarranted, or unlawful
use or interference with public or private rights, including, but not limited to, unreasonable or
unwarranted use or interference with streets, excessive traffic or parking requirements, rights-of-way,
or sidewalks, or in any other offensive or noxious activities.
3.3 Construction Type. All construction shall be new. No building previously used at
another location nor any building or structure originally constructed as a mobile dwelling or structure
may be moved onto a Lot, except as expressly hereinafter provided for temporary buildings. In
addition to the foregoing, an engineered foundation shall be required for all residential dwelling units
constructed within the Common Interest Community.
3.4 Building Envelopes. All improvements to be constructed on a Lot, with the exception
of Improvements which are necessary to facilitate ingress to and egress from a Lot or Improvements
which are otherwise expressly authorized by the Design Review Committee, shall be located within
the Building Envelope designated for such Lot.
3.5 No Noxious or Offensive Activity. No noxious or offensive activity shall be carried
on upon any property within the Common Interest Community, nor shall anything be done or placed
thereon which is or may become a nuisance or cause an unreasonable embarrassment, disturbance,
or annoyance to others.
3.6 Annoying Sounds or Odors. No sound or odor shall be emitted from any property
within the Common Interest Community which is noxious or unreasonably offensive to others.
Without limiting the generality of the foregoing, no exterior speakers, horns, whistles, bells, or other
sound devices, other than security devices used exclusively for security purposes, shall be located
or used on any property except with the prior written approval of the Design Review Committee.
3.7 No Hazardous Activities. No activity shall be conducted on, and no Improvement
shall be constructed on, any property within the Common Interest Community which is or might be
Declaration of Covenants Conditions and Restrictions for The Reserve at Elk Meadows PUD Page 11 of 63
unsafe or hazardous to any Person or property. Without limiting the generality of the foregoing, no
firearms shall be discharged upon any property within the Common Interest Community.
3.8 Outside Burning; Fire Hazards. No exterior fires shall be lighted or permitted within
the Common Interest Community except in a contained barbecue unit while attended and in use for
cooking purposes and except as a part of the operation and maintenance of a ditch or part thereof.
No Owner shall cause or permit any condition on his Lot which creates a fire hazard or is in violation
of fire prevention regulations, or which would increase insurance rates for the Common Areas or for
other Lot Owners.
3.9 No Firearms or Hunting. The discharge of firearms on any part of the Common
Interest Community (including the Lots) is expresslyprhibited. Hunting on any part of the Common
Interest Community (including the Lots) is expressly prohibited.
3.10 No Unsightliness. All unsightly structures, facilities, equipment, objects, and
conditions shall be enclosed within a structure, including snow removal equipment and garden or
maintenance equipment except when in actual use. No laundry or wash shall be dried or hung
outside any dwelling unit.
3.11 Yards. All yards and open spaces and the entire area of every Lot on which no
building has been constructed shall be maintained in accordance with standards to be established by
the Design Review Committee. In addition, each Lot shall be kept free from brush or other growth
or trash which, in the reasonable opinion of the Design Review Committee, is unsightly or causes
undue danger of fire. Notwithstanding the foregoing, the Design Review Committee shall be
authorized to permit landscaping on a Lot in accordance with a landscaping plan approved by the
Design Review Committee in accordance with the provisions hereof.
3.12 Restrictions on Garbage and Trash. No refuse, garbage, trash, lumber, grass, shrub
or tree clippings, plant waste, compost, metal, bulk materials, scrap, refuse, or debris of any kind
shall be kept, stored, or allowed to accumulate on any Lot except within an enclosed structure or
appropriately screened from view, except that any container containing such materials maybe placed
outside at such times as may be necessary to permit garbage or trash pickup. All containers used for
the temporary storage of garbage, trash and related materials shall be bear -proof.
3.13 Animals. No animals, livestock or poultry of any kind shall be raised, bred or kept
on any Lot or Common Area, except as provided in this paragraph. Domesticated birds or fish and
other small domestic animals permanently confined indoors will be allowed on all Lots. No other
animals, except an aggregate of not more than two (2) domesticated animals (e.g., one (1) cat and
one (1) dog) per Lot, will be permitted within the Common Interest Community; provided that (a)
such animals are not kept, bred, or maintained for any commercial purpose; (b) such animals must
be fenced or restrained at all times within a Lot; and (c) only one (1) dog will be allowed for each
residential dwelling unit located within the Common Interest Community. No animal of any kind
shall be permitted which in the opinion of the Design Review Committee makes an unreasonable
amount of noise or odor or is a nuisance. All household pets shall be controlled by their Owner and
shall not be allowed off the Owner's Lot except when properly leashed and accompanied by the pet
Declaration of Covenants Conditions and Restrictions for The Reserve at Elk Meadows PUD Page 12 of 63
Owner or his representative. Each Owner of a household pet shall be financially responsible and
liable for any damage or destruction caused by said household pet and shall be personally and
financially responsible for any clean-up related to such pet.
3.14 No Temporary Structures. No tent, shack, temporary structure, or temporary building
shall be placed upon any property within the Common Interest Community except with the prior
written consent of the Design Review Committee obtained in each instance.
3.15 Restriction on Pipes and Utility Lines. Pipes for water, gas, sewer, drainage, or other
purposes, and utility meters or other utility facilities shall be kept and maintained, to the extent
reasonably possible, underground or within an enclosed structure. Solar power units meeting all
governmental guidelines for residential purposes maybe utilized if such unit is approved in advance
by the Design Review Committee.
3.16 Restrictions on Signs and Advertising. Except as expressly allowed by the PUD Zone
District regulations for the Common Interest Community, no sign, poster, billboard, advertising
device, or display of any kind shall be erected or maintained anywhere within the Common Interest
Community so as to be evident to public view. Provided, however, development related signs owned
or erected by Declarant and house numbering signs approved by the Design Review Committee shall
be permitted. "For Sale" or "For Rent" signs shall be permitted, subject, however, to any guidelines
for such signs adopted by either the Board of Directors or the Design Review Committee.
3.17 Restrictions on Mining or Drilling. No property within the Common Interest
Community shall be used for the purpose of mining, quarrying, drilling, boring, or exploring for or
removing underground water, oil, gas, or other hydrocarbons, minerals, rocks, stones, gravel, or
earth, except as deemed necessary by Declarant or any Person designated by Declarant for the
development of the Common Interest Community as contemplated herein. Additionally, Declarant,
for itself and its successors and assigns, excepts and reserves, and shall retain the right to develop
and remove, any such oil, gas, hydrocarbons or minerals by slant drilling or other suitable means of
subterranean entry; provided, however, that any such method of slant drilling or other means of
subterranean entry may only be employed without impairing structures, Improvements or
appurtenances, or the use thereof, located or to be located on any Lot.
3.18 Wells. No well from which water is produced shall be dug, nor shall storage tanks
or reservoirs be made or operated anywhere in the Common Interest Community; provided, however,
the Association shall have such right, but not the obligation, in connection with its performance of
Association Functions to drill wells; and provided, further, that nothing herein shall prevent the
drilling or the installation of wells, well pumps and other well facilities, or the construction and
maintenance of water storage tanks by the Association, the Declarant or any special district in which
the Common Interest Community is located, for purposes ofproviding water to the Common Interest
Community and adjacent areas.
3.19 Maintenance of Drainage. There shall be no interference with the established
drainage pattern over any property within the Common Interest Community, except as approved in
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writing by the Design Review Committee. Approval shall not be granted unless provision is made
for adequate alternate drainage. The "established drainage pattern" shall mean the drainage pattern
which exists at the time the overall grading of any property is completed and shall include any
established drainage pattern shown on any plans approved by the Design Review Committee. The
established drainage pattern may include the drainage pattern: (a) from Association Properties over
any Lot; (b) from any Lot over the Association Properties; (c) from any property owned by the
County or other Persons over any Lot; (d) from any Lot over property owned by the County or other
Persons; or (e) from any Lot over another Lot.
3.20 Compliance with Insurance Requirements. Except as may be approved in writing by
the Board of Directors, nothing shall be done or kept on property within the Common Interest
Community which may result in a material increase in the rates of insurance or would result in the
cancellation of any insurance maintained by the Association or any other Owner within the Common
Interest Community.
3.21 Compliance with Laws. Nothing shall be done or kept on any property within the
Common Interest Community in violation of any law, ordinance, rule, or regulation of any
governmental authority having jurisdiction.
3.22 Restrictions on Resubdivision of Lots. No Lot shall ever be further subdivided by
an Owner into smaller Lots.
3.23 Consolidation of Lots. The Owner of more than one contiguous Lot may seek
permission from the Design Review Committee to apply to the appropriate officials of Garfield
County, Colorado, to consolidate such Lots into one Lot. Such request must be submitted with a plat
showing the new proposed Building Envelope and a Phase I Geologic Investigation by a professional
geologist relative to the Lots being so combined. Should the Design Review Committee and the
appropriate Garfield County, Colorado office approve such combination, the Owner shall remain
responsible for paying assessments for each Lot as if such combination had not occurred and shall
also be entitled to one (1) vote for each Lot as if such Lots had not been combined.
3.24 Water Systems and Wastewater Treatment. The Association will govern, control,
maintain and operate a domestic water system for the Common Interest Community for the purposes
of providing treated potable water for domestic, in-house uses and irrigation of up to 500 square feet
of lawn and garden space for each Lot in the Common Interest Community. The Association shall
govern and control the operation and maintenance of the water system and assess the Owners for any
and all expenses incurred in connection with the operation, maintenance and repair of the Water
System. The Association will also govern, control, maintain and operate the Irrigation System and
Wastewater Treatment Facility pursuant to the terms of this Declaration and the Association
Documents.
3.25 Restrictions on Water Systems. Except as deemed necessary by Declarant in the
development of the Common Interest Community contemplated herein and except as provided in
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Section 3.38 hereof, no individual water supply system shall be installed or maintained for any
property within the Common Interest Community.
3.26 Restoration in the Event of Damage or Destruction. In the event of damage or
destruction of any Improvement on any Lot, the Owner thereof shall cause the damaged or destroyed
Improvement to be restored or replaced to its original condition or such other condition as may be
approved in writing by the Design Review Committee, or the Owner shall cause the damaged or
destroyed Improvement to be demolished and the Lot to be suitably landscaped, subject to the
approval of the Design Review Committee, so as to present a pleasing and attractive appearance.
Such Improvements shall be repaired, restored, or otherwise demolished and suitably landscaped
within an established time frame set forth in design review guidelines promulgated by the Design
Review Committee.
3.27 Storage. No building materials shall be stored on any Lot except temporarily during
continuous construction of an Improvement.
3.28 Vehicle Repairs. No maintenance, servicing, repair, dismantling, or repainting of any
type of vehicle, boat, machine, or device may be carried on, except within a completely enclosed
structure which screens the sight and sound of the activity from the street and from other Lots.
3.29 Storage of Gasoline and Explosives, Etc. No Lot shall be used for the storage of
explosives, gasoline, or other volatile and/or incendiary materials or devices or any materials deemed
hazardous substances under applicable environmental laws, rules, or regulations. Gasoline or fuel
for Owner's lawn mower, snowblower, and the like maybe maintained on an incidental basis on the
Lot in an amount not to exceed ten (10) gallons.
3.30 Vehicle Parking, Storage, Operation and Repair.
3.30.1 No on street parking of any vehicles shall be allowed, except in areas
expressly designated by signs to allow on street parking. Only permitted vehicles (as defined
in subsection 3.30.2 below) may be parked in the designated areas on the streets within the
Common Interest Community. No boats, trailers, campers, motorcycles, snowmobiles, golf
carts, or any other similar items shall be parked or stored on the streets within the Common
Interest Community.
3.30.2 No boats, trailers, buses, motor homes, campers (on or off supporting
vehicles), motorcycles, snowmobiles, recreational vehicles, golf carts, trucks, industrial or
commercial vehicles (both cabs or trailers), abandoned or inoperable vehicles (as defined
below), or any other similar vehicles (excepting passenger automobiles and one tome or
smaller pick-up trucks) shall be parked or stored in or upon the Common Areas or upon a Lot
except within enclosed structures approved in advance by the Design Review Committee,
and no vehicle of any kind shall be maintained, repaired, repainted, serviced or rebuilt on the
Common Areas or on any Lot except within a completely enclosed garage which fully
screens the sight and sound of the activity from the streets and other Lots and the Common
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Areas. This restriction shall not prevent the non-commercial washing and polishing of
vehicles and boats, together with activities normally incident thereto. No more than four (4)
permitted vehicles (passenger automobiles and/or one ton or smaller pick-up trucks) shall be
parked at any time in the driveway of any Lot, except during special occasions and then only
for the duration thereof.
3.30.3 Notwithstanding the foregoing, vehicles may be temporarily parked on
driveways on Lots and on streets within the Common Interest Community for loading,
delivery or emergency purposes, but only for the time required to accomplish such purpose,
and as necessary for the construction or maintenance of Improvements within the Common
Interest Community.
3.30.4 An "abandoned or inoperable vehicle" shall mean any motorized vehicle
which does not display a current motor vehicle license or which has not been drive under its
own propulsion for a period of two (2) weeks or longer (excepting otherwise permitted
vehicles parked by Lot Owners or Occupants on their Lot driveways while on vacation or
during a period of illness), or which does not have an operable propulsion system within the
vehicle.
3.30.5 In the event that the Board of Directors or the Design Review Committee shall
determine that a vehicle is abandoned or inoperable, or is otherwise in violation of the
provisions of this Section 3.30, a written notice of violation describing said vehicle shall be
personally delivered to the vehicle owner (if such owner can be reasonably ascertained) or
shall be conspicuously placed upon the vehicle (if the owner cannot be reasonably
ascertained), and if the offending vehicle is not removed within seventy-two (72) hours
thereafter, the Board of Directors or Design Review Committee (as the case may be) shall
have the right to remove and store the offending vehicle, or cause the vehicle to be removed
and stored, at the sole expense of the Owner of the Lot on which the vehicle is located, and
to enter upon an Owner's Lot for such purpose, all without liability on the part of the Board
of Directors or the Design Review Committee.
3.30.6 Snowmobiles, motorcycles, and motorized trail bikes, minibikes, dirt bikes,
all terrain vehicles, mopeds and similar motorized vehicles shall not be used or operated (but
may be transported on trailers) within the Common Interest Community, except that
motorcycles properly licensed for operation on public roads may be used on streets within
the Common Interest Community.
3.31 Fences. [Provisions for allowable fencing will be inserted in accordance with all
applicable conditions of approval. The Applicant suggests that such provisions will, at a minimum),
address allowable locations, materials, types and sizes offences in recognition of the impacts that
fences will have upon wildlife activity within the Common Interest Community.]
3.32 Air Conditioning and Heating Equipment/SoIar Collecting Devices. No heating, air
conditioning, air movement, solar collection or refrigeration equipment shall be placed, allowed, or
Declaration of Covenants Conditions and Restrictions for The Reserve at Elk Meadows PUD Page 16 of 63
maintained anywhere other than on the ground; provided, however, that solar units or swamp coolers
meeting all governmental guidelines for residential uses may be located on the roof if (a) such solar
unit or swamp cooler is built into and made an integral part of the roof flashing or the structure of
any house constructed on such Lot, and (b) such solar unit or swamp cooler is specifically approved
by the Design Review Committee in accordance with Article 4 below. The type, size, location and
necessary screening for any proposed solar collection device or swamp cooler shall be submitted to
the Design Review Committee in accordance with its established procedures and the Design Review
Committee shall have the authority to approve, conditionally approve, or disapprove the proposed
collection device in accordance with the terms and provisions hereof. Notwithstanding the
foregoing, in no event will the terms and provisions of this Declaration be deemed to prohibit the
use of solar collection devices within the Common Interest Community and in no event shall the
Design Review Committee unreasonably restrict the right to use solar collection devices by any
Owner of a Lot within the Common Interest Community.
3.33 Leases. Any Owner shall have the right to Lease his Lot under the following
conditions:
3.33.1 All Leases shall be in writing;
3.33.2 All Leases shall be for a minimum duration of six months;
3.33.3 All Leases shall be for a Lot with a completed residence thereon;
3.33.4 All Leases shall provide that the terms of the Lease and lessee's occupancy
of the Lot shall be subject in all respects to the provisions of this Declaration, and the
Articles of Incorporation, the Bylaws, and the Rules and Regulations of the Association, and
that any failure by the lessee to comply with any of the aforesaid documents, in any respect,
shall be a default under the Lease; and
3.33.5 Each Owner shall notify the Association immediately upon the leasing of his
Lot, and register with the Association both the name(s) of the tenant(s) and new mailing
information for notices to be sent from the Association directly to such Owner.
3.34 Easements; Utilities. All streets, pedestrian ways and easements shown on the
Recorded Plat for any portion of the Common Interest Community have been reserved for the
purposes indicated on such Plat. No Owner may erect any structure of any type whatsoever in such
easement areas, nor may an Owner use the surface of such easement areas for any private use, other
than landscaping which will not interfere with the use of said easement by the entities for whose
benefit it has been reserved. With respect to such easement areas, as well as any other easement
areas described on a Plat or within recorded easement documents, any and all bona fide public utility
service companies, including, but not limited to, Public Service Company of Colorado, Holy Cross
Electric Association, Inc., KN Energy and U.S. West Communications, shall have the right of access,
ingress, egress, and use of such easement areas for the installation and maintenance of utility
facilities. Except as to special street lighting or other aerial utility facilities which may be required
Declaration of Covenants Conditions and Restrictions for The Reserve at Elk Meadows PUD Page 17 of 63
by the County or may be required by the franchisee of any utility company, no aerial facilities of any
type (except meters, risers, service pedestals and other surface installations necessary to maintain or
operate appropriate underground facilities) shall be erected or installed within the Common Interest
Community, whether upon Lots, easements, streets, or rights-of-way of any type, either by a utility
company or any other person or entity, (including but not limited to any person owning or acquiring
any part of the Common Interest Community) and all utility service facilities (including but not
limited to water, sewer, gas, electricity and telephone) shall be buried underground, under
recreational easements, Common Areas, streets, or other utility easement areas for the purpose of
serving any structure located on any part of the Common Interest Community.
3.35 Landscaping. Each Lot shall be fully landscaped within thirty (30) days of the date
on which a certificate of occupancy is obtained for the residence, subject to excusable delays as
determined by the Design Review Committee due to weather. The landscaping of each Lot shall be
primarily indigenous plant life from an established plant list as established by the Design Review
Committee. Home lawns shall be of an identical or very similar insect resistant blend of rough
grasses naturally occurring in the area and such grasses shall be subject to guidelines promulgated
by the Design Review Committee. Lots 23 through 39 in the East Meadow neighborhood shall be
required to plant at minimum the following trees in the area between the rear of the residence and
the rear lot line: 2 evergreen trees - minimum height at planting of 10 feet (acceptable species:
Colorado Blue Spruce or Ponderosa Pine); and 3 deciduous trees - minimum caliper at planting of
2.5 feet (acceptable species: Green Ash variety, Hackberry, Silver Maple, Linden variety).
{Additional landscape requirements shall be inserted in these Covenants if required by any future
preliminary plan approval.] No landscaping plan shall be implemented until approval of the Design
Review Committee has been obtained. Each Owner shall maintain the landscaping upon such
Owner's Lot in good condition. Landscaping maintenance shall include the management,
maintenance and removal of weeds. Failure to properly maintain landscaping will result in the
Association assessing Reimbursement Assessments as provided in this Declaration. Home lawns
and Common Areas shall be irrigated with surface waters whenever practical. Each Lot shall only
be allowed to irrigate a maximum of 500 square feet of lawn and garden space using the domestic,
potable water system that is owned by the Association. Each Owner shall diligently maintain,
cultivate, husband, protect and preserve the shrubs and trees upon his Lot, including, without
limitation, the removal of dead branches, dead brush and performance of other tasks calculated to
remove or eliminate material which constitutes or creates a fire hazard. Each Owner shall cooperate
with the Association in its brush clearing and fire protection husbandry program for reduction of fire
hazard on Common Areas.
3.36 Maintenance of Common Areas. The Association shall be responsible for the
management of and removal of weeds from the Common Areas.
3.37 Swimming Pools and Pool Equipment. No pool may be erected, constructed or
installed without the prior written consent of the Design Review Committee. Above -ground pools
are expressly prohibited. All pool service equipment shall be fenced and shall not be visible from
any residential street within the Common Interest Community.
Declaration of Covenants Conditions and Restrictions for The Reserve at Elk Meadows PUD Page 18 of 63
3.38 Outside Lighting. All exterior lighting installed or maintained on any dwelling unit
located on a Lot shall be placed so that the light source is not visible from the dwelling on any
neighboring Lot or any Common Area. The Design Review Committee may establish various
standards for exterior lighting including, without limitation, standards for hue and intensity.
3.39 Fire Protection. Construction of all dwelling units or other Improvements upon Lots
within the Common Interest Community, including any possible requirement to install a fire
protection sprinkler system within such dwelling unit or Improvement, shall be in accordance with
all applicable codes, including the Uniform Building Code and Uniform Fire Code.
3.40 Requirements for Mitigation of Wildfire. [Provisions for mitigation of wildfire will
be inserted in accordance with all applicable conditions of approval. The Applicant suggests that
such conditions will at a minimum address: Creation of a defensible space around each home,
ignition resistant roof materials and construction, and Association maintenance of the Fuels
Reduction Easements shown on any plat.]
3.41 Excavations. No excavation or other earth disturbance shall be performed or
permitted within the Common Interest Community except in connection with the construction of
Improvements, and then only with the prior written approval of the Design Review Committee.
Upon completion of construction, openings in the ground shall be backfilled and compacted and all
disturbed ground shall be graded and landscaped in accordance with the Design Review Guidelines
and the requirements of the Design Review Committee.
3.42 Lakes. No swimming, boating, or ice skating shall take place on any lakes or ponds
within the Common Interest Community.
3.43 Camping and Picnicking. No camping or picnicking shall be allowed within the
Common Areas except in areas, if any, that may be designed for such purpose by Declarant or the
Association. No camping shall be allowed within the Public Parks, and picnicking shall be allowed
only in those areas of Public Parks as may be designated for such purpose from time to time by the
Town.
3.44 Irrigation Systems and Ditch Laterals. Declarant hereby discloses that certain
irrigation ditch laterals are currently located or may be constructed (a) within easement areas located
upon certain Lots; (b) upon Association Properties; or (c) in areas adjacent to certain Lots or
Association Properties ("Ditch Laterals"). Declarant further discloses that as of the date of this
Declaration and to the best of Declarant's knowledge, the ownership of any and all water rights
carried or to be carried in such Ditch Laterals is vested in the Declarant. In accordance with the
foregoing, in no event shall the Association or any Owner be entitled to the right of use of the Ditch
Laterals, or any water flowing through such Ditch Laterals, except pursuant to a written agreement
(license) between the Association and the Declarant. In no event shall any Owner be entitled to
install irrigation systems which divert water from the Ditch Laterals or make any modifications to
the Ditch Laterals without the prior written approval of the Declarant. In addition, in no event shall
any Owner obstruct or impede the flow of water through any Ditch Lateral. Except as otherwise
Declaration of Covenants Conditions and Restrictions for The Reserve at Elk Meadows PUD Page 19 of 63
provided herein, no permanent or temporary Improvements (including, without limitation,
landscaping and fencing) shall be constructed by an Owner within or upon any Ditch Lateral or
drainage or irrigation easement located within, or adjacent to, the Common Interest Community. In
the event that an Owner desires to construct any Improvement within or upon any such Ditch Lateral
or drainage or irrigation easement, such Owner shall submit the plans for such Improvements to the
Design Review Committee in accordance with the terms and provisions of Article 4 hereof and to
the Declarant for approval, which approval can be withheld for any reason. In the event the Design
Review Committee and the Declarant approve the plans for the proposed Improvements in
accordance with the provisions of Article 4 hereof, the Owner of such Lot may construct such
Improvements in accordance with the plans approved by the Design Review Committee. IN
ACCORDANCE WITH THE FOREGOING, AND NOTWITHSTANDING ANYTHING IN THIS
DECLARATION TO THE CONTRARY, IN NO EVENT SHALL THE ASSOCIATION OR THE
DECLARANT BE OBLIGATED FOR ANY LOSS, DAMAGE, COST OR EXPENSE INCURRED
BY ANY OWNER FOR DAMAGE OR DESTRUCTION TO ANY IMPROVEMENT LOCATED
WITHIN OR UPON ANY DITCH LATERAL OR ANY DRAINAGE OR IRRIGATION
EASEMENT AND THE CONSTRUCTION OF ANY IMPROVEMENT WITHIN SUCH AREAS
SHALL BE AT THE RISK OF SUCH OWNER. In the event that an Owner desires to construct any
Improvement within or upon any Ditch Lateral or any drainage or irrigation easement, Declarant and
the Association hereby disclaim any obligation or potential liability regarding the maintenance,
operation and repair of the Ditch Laterals. All Owners hereby assume any risk involved with respect
to Ditch Laterals and hereby acknowledge that neither the Association nor the Declarant shall have
any responsibility or liability of any kind to any Owner who incurs any loss, damage, cost or expense
arising from or related to such Ditch Laterals, including, but not limited to, any loss or damage
caused by flooding. In accordance with the foregoing, such Owners, on behalf of themselves and
their successors and assigns, by acceptance of a deed, acknowledge their assent to the provisions
hereof, and hereby release Declarant and the Association, and each of their officers, directors,
partners, agents, employees, stockholders and contractors, from and against any and all obligations,
claims, demands, liabilities, costs, expenses, attorneys' fees, or causes of action of any kind
whatsoever, whether arising prior or subsequent to the date hereof, whether known or unknown,
based upon, arising out of, or in any manner related to, the Ditch Laterals.
3.45 Irrigation ofAssociation Properties. The Irrigation System shall be used for irrigation
of Association Properties, including, but not limited to, Common Areas and shall be used to
supplement the irrigation water provided to the Lots.
3.46 Antenna and Satellite Dishes. If an Owner wishes to install an antenna to receive
video programming, the Owner shall notify the Design Review Committee in writing of the planned
installation and the proposed location thereof at least thirty (30) days prior to the installation. The
antenna installation and location shall comply with all fire, electrical and other applicable safety
codes, and the installing Owner shall, to the extent feasible, install the antenna in a location that
minimizes its visibility from neighboring Lots and Common Areas. The installing Owner shall be
obligated to paint the antenna so that it blends into the background against which it is mounted and
to plant and maintain such reasonable landscaping as will screen the antenna from neighboring Lots
and Common Areas. Provided always, that in the event that in any particular situation any of the
Declaration of Covenants Conditions and Restrictions for The Reserve at Elk Meadows PUD Page 20 of 63
foregoing requirements or restrictions cause an unreasonable delay or cost in the installation,
maintenance or use of the antenna, or prevent the reception of acceptable quality signals, said
requirements or restrictions shall be invalid as they apply to that particular situation. Satellite dishes
that exceed one meter in diameter, and MDS antennas that exceed one meter in diameter or diagonal
measurement, shall not be allowed within the Common Interest Community. Mast antennas that
extend higher than 12 feet above the roof line and antennas that are not used to receive video
programming shall only be permitted within the Common Interest Community if they receive the
prior written approval of the Design Review Committee as to design, location and screening from
neighboring Lots and Common Areas.
3.47 Restrictions to Mitigate Impacts on Wildlife. [Restrictions to mitigate impacts of
development on wildlife will be inserted in accordance with all applicable conditions of approval.
In addition to other sections of this Declaration that address such matters as pet control and
fencing, the Applicant suggests that such restrictions will, at a minimum, address prohibitions
against feeding pets outdoors, locations of allowable bird feeders, storage of barbeque grills,
allowable trash containers, maintenance of existing vegetation, other restrictions related to dealing
with bears, and the education of Owners relating to issues which arise as a result of living in areas
frequented by wildlife.]
ARTICLE 4.
ARCHITECTURAL APPROVAL
4.1 Approval of Improvements Required. The approval of the Design Review Committee
shall be required for any Improvement to Property on any Lot, except (a) for any Improvement to
Property made by Declarant; (b) where approval is not reasonably required to carry out the purposes
of this Declaration as determined by the Design Review Committee; or (c) where prior approval of
Improvements to Property may be waived or certain Improvements to Property may be exempted in
writing or under written guidelines or rules promulgated by the Design Review Committee.
4.2 Improvement to Property Defined. "Improvement to Property" requiring approval of
the Design Review Committee shall mean and include, without limitation, any of the following
occurring within the Common Interest Community: (a) the construction, installation, erection, or
expansion of any building, structure, or other Improvement, including utility facilities and fences;
(b) the demolition, destruction or removal, by voluntary action, of any building, structure, tree,
vegetation or other Improvement; (c) the grading, excavation, filling, or similar disturbance to the
surface of the land including, without limitation, change of grade, change of ground level, change
of drainage pattern, or change of stream bed; and (d) any change or alteration of any previously
approved Improvement to Property, including any change of exterior appearance, color, or texture
occurring.
4.3 Membership of Committee. The Design Review Committee shall consist of three (3)
members, all of whom shall be initially appointed by Declarant. Declarant shall have the continuing
right to appoint all three (3) members during the Appointment Period (as hereinafter defined).
During the period of development of the Common Interest Community while Declarant has rights
Declaration of Covenants Conditions and Restrictions for The Reserve at Elk Meadows PUD Page 21 of 63
to appoint members of the Design Review Committee, Declarant shall give the Association written
notice of the appointment or removal of any member of the Design Review Committee. The
"Appointment Period" shall mean the period of time commencing as of the date of Recordation of
this Declaration and continuing until the earliest to occur of the following events: (a) when all Lots
which maybe created within the Common Interest Community have been conveyed to Persons other
than Declarant and certificates of occupancy have been issued for the residences constructed thereon;
or (b) when, in its discretion, Declarant voluntarily relinquishes such right. Members of the Design
Review Committee may but shall not necessarily be Members of the Association. After expiration
of the Appointment Period, members of the Design Review Committee shall be appointed by the
Board ofDirectors. Members of the Design Review Committee appointed by the Board ofDirectors
may be removed at any time by the Board, and shall serve for such term as may be designated by the
Board or until resignation or removal by the Board. After the expiration of the Appointment Period,
the Association may at any time and from time to time change the authorized number of members
of the Design Review Committee.
4.4 Establishment of Subcommittees. The Design Review Committee shall have the right
to establish subcommittees ("Covenant Committees") to review the modifications to Improvements
upon Lots after the initial construction thereofhas been completed and a certificate of occupancy has
been issued thereon, and for enforcement of compliance with this Declaration and any Supplemental
Declaration applicable to a Lot. For purposes of this Declaration, all references to the Design
Review Committee shall also refer to any Covenant Committee. The procedures for establishment,
the rights and duties thereof, and the limitations thereon shall be established and adopted by the
Design Review Committee.
4.5 Address of Design Review Committee. The address of the Design Review
Committee shall be at the principal office of the Association.
4.6 Submission of Plans. Prior to submission of building plans to the County for a
building permit when applicable and prior to commencement of work to accomplish any proposed
Improvement to Property, the Person proposing to make such Improvement to Property ("Applicant")
shall submit to the Design Review Committee at its offices such descriptions, surveys, plot plans,
drainage plans, elevation drawings, construction plans, specifications, and samples of materials and
colors as the Design Review Committee shall reasonably request showing the nature, kind, shape,
height, width, color, materials, and location of the proposed Improvement to property. The
Applicant shall be entitled to receive a receipt for the same from the Design Review Committee or
its authorized agent. The Design Review Committee may require submission of additional plans,
specifications, or other information prior to approving or disapproving the proposed Improvement
to Property. Until receipt by the Design Review Committee of all required materials in connection
with the proposed Improvement to Property, the Design Review Committee may postpone review
of any materials submitted for approval.
4.7 Criteria for Approval. The Design Review Committee shall approve any proposed
Improvement to Property only if it deems in its reasonable discretion that the Improvement to
Property in the location indicated will not be detrimental to the appearance of the surrounding areas
Declaration of Covenants Conditions and Restrictions for The Reserve at Elk Meadows PUD Page 22 of 63
of the Common Interest Community as a whole; that the appearance of the proposed Improvement
to Property will be in harmony with the surrounding areas of the Common Interest Community; that
the Improvement to Property will not detract from the beauty, wholesomeness, and attractiveness of
the Common Interest Community or the enjoyment thereof by Owners; that the upkeep and
maintenance of the proposed Improvement to Property will not become a burden on the Association;
and that the proposed Improvement to Property does not affect the drainage plan for the Common
Interest Community or any portion thereof. The Design Review Committee may condition its
approval of any proposed Improvement to Property upon the making of such changes therein as the
Design Review Committee may deem appropriate.
4.8 Design Guidelines. The Design Review Committee may issue standards or rules
("Design Guidelines") relating to the procedures, materials to be submitted, fees, and additional
factors which will be taken into consideration in connection with the approval of any proposed
Improvement to Property. The Design Guidelines may specify circumstances under which the strict
application of limitations or restrictions under this Declaration (which are not substantial or material
in nature) will be waived or deemed waived in whole or in part because of a change in applicable
laws or because strict application of such limitations or restrictions would be unreasonable or unduly
harsh under the circumstances. The Design Guidelines may waive the requirement for approval of
certain Improvements to Property or exempt certain Improvements to Property from the requirement
for approval, if such approval is not reasonably required to carry out the purposes of this Declaration
and such Improvements are not substantial in nature.
4.9 Design Review Fee. The Design Review Committee may, in the Design Guidelines,
provide for the payment of a fee to accompany each request for approval of any proposed
Improvement to Property. The Design Review Committee may provide that the amount of such fee
shall be uniform for similar types of any proposed Improvement to Property or that the fee shall be
determined in any other reasonable manner, such as based upon the estimated cost of the proposed
Improvement to Property. The Design Committee may further provide that the amount of any such
design review fee include engineering consultant and other fees reasonably incurred by the
Association in reviewing any proposed Improvement to Property.
4.10 Decision of Committee. Any decision of the Design Review Committee shall be
made within thirty (30) days after receipt by the Design Review Committee of all materials required
by the Design Review Committee, unless such time period is extended by mutual agreement. The
decision shall be in writing and if the decision is not to approve a proposed Improvement to Property,
the reasons therefor shall be stated. The decision of the Design Review Committee shall be promptly
transmitted to the Applicant at the address furnished by the Applicant to the Design Review
Committee.
4.11 Failure of Committee to Act on Plans. Any request for approval of a proposed
Improvement to Property shall be deemed approved, unless disapproval or a request for additional
information or materials is transmitted to the Applicant by the Design Review Committee within
thirty (30) days after the date of receipt by the Design Review Committee of all required materials.
Declaration of Covenants Conditions and Restrictions for The Reserve at Elk Meadows PUD Page 23 of 63
4.12 Completion of Work After Approval. Following the approval of any proposed
Improvement by the Design Review Committee, the proposed Improvement shall be completed by
such Owner: (a) as promptly and diligently as possible but in no event in excess of the time periods
set forth below; (b) in substantial conformance with all plans and specifications and other materials
presented to the Design Review Committee; and (c) in accordance with any and all conditions
imposed by the Design Review Committee. In accordance with the foregoing, all Improvements
approved by the Design Review Committee shall be completed (a) within eighteen (18) months from
the date of approval of such Improvements by the Design Review Committee; provided, however,
that any and all landscaping andlor gardening approved by the Design Review Committee which is
related to the construction of the initial dwelling unit for a Lot shall be completed within thirty (30)
days of the issuance of the certificate of occupancy for such dwelling unit or within such time period
as the Design Review Committee may otherwise prescribe. In all cases, the Design Review
Committee must issue a "Notice of Satisfactory Completion of Improvement to Property" or as
"Conditional Notice of Satisfactory Completion of Improvement to Property" prior to the application
for an issuance of a certificate of occupancy from the County. Failure to comply with the terms and
conditions of this provision shall constitute noncompliance with the terms and provisions of this
Declaration and the Association shall have the right to invoke all rights and remedies provided to
the Association hereunder, including but not limited to, the imposition of fines and penalties in
accordance with Paragraph 8.17 hereof.
4.13 Notice of Completion. Upon completion of the Improvement to Property, the
Applicant shall give written Notice of Completion to the Design Review Committee. Until the date
of receipt of such Notice of Completion, the Design Review Committee shall not be deemed to have
notice of completion of such Improvement to Property.
4.14 Inspection of Work. The Design Review Committee or its duly authorized
representative shall have the right to inspect any Improvement to Property prior to or after
completion, provided that the right of inspection shall terminate fourteen (14) days after the Design
Review Committee shall have received a Notice of Completion from Applicant.
4.15 Notice of Satisfactory Completion of Improvement to Property. After inspection of
the Improvement to Property, the Design Review Committee will issue a Notice of Satisfactory
Completion of Improvement to Property if the Improvements were completed in conformity with the
plan, description, and materials furnished to and approved by the Design Review Committee, and
any conditions imposed by the Design Review Committee. Upon such receipt of Notice of
Satisfactory Completion of Improvement to Property, the Applicant may proceed to request a
certificate of occupancy from the County.
4.16 Notice of Noncompliance. If, as a result of inspections or otherwise, the Design
Review Committee finds that any Improvement to Property has been done without obtaining the
approval of the Design Review Committee or was not done in complete conformity with the
description and materials furnished to, and any conditions imposed by, the Design Review
Committee or was not completed within eighteen (18) months after the date of approval by the
Design Review Committee or such shorter period as specified herein or in writing by the Design
Declaration of Covenants Conditions and Restrictions for The Reserve at Elk Meadows PUD Page 24 of 63
Review Committee, the Design Review Committee shall notify the Applicant in writing of the
noncompliance, which notice shall be given, in any event, within fourteen (14) days after the Design
Review Committee receives a Notice of Completion from the Applicant. The notice shall specify
the particulars of the noncompliance and shall require the applicant to take such action as may be
necessary to remedy the noncompliance. If a Notice of Noncompliance has been issued by the
Design Review Committee, the Applicant may post a Performance Guaranty, as hereinafter defined,
sufficient to bring the Improvement to Property into compliance with the Design Review Committee;
provided however, that the Design Review Committee shall not be required to accept such
Performance Guaranty. Such Performance Guaranty must be in an amount sufficient to remedy any
noncompliance, as determined by the Design Review Committee in its sole and absolute discretion.
After posting such Performance Guaranty with the Association, the Design Review Committee may
then issue a Conditional Notice of Satisfactory Completion of Improvement to Property. Such
Conditional Notice shall grant authorization for the Applicant to request a certificate of occupancy
from the County.
4.17 Performance Guaranty for Noncompliance or Incompletion. If the Applicant wishes
to apply for and obtain a certificate of occupancy from the County prior to completion of landscaping
and/or prior to correction of a minor noncompliance, the Applicant may request to post a bond, letter
of credit or cash escrow in an amount equal to the estimated cost of completing such work
("Performance Guaranty"); provided however the Design Review Committee shall not be required
to accept such Performance Guarantee. The Performance Guaranty shall be used by the Association
to ensure completion of such work in accordance with the time periods for completion established
hereunder and the plans for such work as approved by the Design Review Committee. The form,
content and terms of the Performance Guaranty shall be determined by the Design Review
Committee in its sole and absolute discretion. If the Design Review Committee accepts the
Performance Guaranty for the completion of landscaping and/or remedy of noncompliance, then the
Design Review Committee shall issue a Conditional Notice of Satisfactory Completion to
Improvement to Property. Such Conditional Notice shall grant authorization for Applicant to request
a certificate of occupancy from the County. All premiums, costs and expenses related thereto shall
be the obligation of the Owner. Any surety or financial institution issuing a payment and
performance bond or letter of credit hereunder shall be authorized to do business in Colorado and
shall be acceptable to the Design Review Committee. If any Owner fails to complete the landscaping
work or fails to remedy the noncompliance, in accordance with the provisions of the Declaration,
subject to delays beyond the reasonable control of such Owner, the Association is authorized under
the provisions of the Declaration to enter upon the Lot of such Owner to complete the landscaping
work and or remedy the noncompliance in accordance with the plans therefore, draw upon the
Performance Guaranty for all costs incurred by the Association relating to the completion of the
landscaping work or relating to the remedy ofnoncompliance and levy a Reimbursement Assessment
against such Owner for all costs and expenses incurred by the Association in completing such
landscape work or in remedying such noncompliance which are not otherwise covered by the
Performance Guaranty, including any costs and expenses of collection and attorney's fees. Upon
satisfactory completion of landscaping and/or remedy of noncompliance, the Applicant shall give
written Notice of Completion to the Design Review Committee as outlined in Article 4.13 herein.
If the Design Review Committee finds the improvements satisfactory, a Notice of Satisfactory
Declaration of Covenants Conditions and Restrictions for The Reserve at Elk Meadows PUD Page 25 of 63
Completion of Improvements to Property shall be issued by the Design Review Committee within
fourteen (14) days of receipt of Notice of Completion and any funds being held by the Association
as a Performance Guarantee shall be released to Applicant within seven (7) days of the issuance of
the Notice of Satisfactory Completion of Improvements to Property.
4.18 Failure of Committee to Act After Completion. If, for any reason other than the
Applicant's act or neglect, the Design Review Committee fails to notify the Applicant of any
noncompliance within fourteen (14) days after receipt by the Design Review Committee of written
Notice of Completion from the Applicant, the Improvement to Property shall be deemed in
compliance if the Improvement to Property was, in fact, completed as of the date of Notice of
Completion and the Applicant may proceed to request a certificate of occupancy from the County.
4.19 Appeal to Board of Directors of Finding of Noncompliance. If the Design Review
Committee gives any notice of noncompliance, the Applicant may appeal to the Board of Directors
by giving written notice of such appeal to the Board and the Design Review Committee within thirty
(30) days after receipt of the notice of noncompliance by the Applicant. If, after a notice of
noncompliance, the Applicant fails to commence diligently to remedy such noncompliance, the
Design Review Committee shall request a finding of noncompliance by the Board of Directors by
giving written notice of such request to the Association and the Applicant within sixty (60) days after
delivery to the Applicant of a notice of noncompliance from the Design Review Committee. In
either event, the Board of Directors shall hear the matter in accordance with the provisions of the
Bylaws for Notice and Hearing, and the Board shall decide whether or not there has been such
noncompliance and, if so, the nature thereof and the estimated cost of correcting or removing the
same.
4.20 Correction of Noncompliance. If the Board of Directors determines that a
noncompliance exists, the Applicant shall remedy or remove the same within a period of not more
than forty-five (45) days from the date of receipt by the Applicant of the ruling of the Board of
Directors. If the Applicant does not comply with the Board ruling within such period, the Board
may, at its option, record a Notice of Noncompliance against the real property on which the
noncompliance exists, may enter upon such property and remove the noncomplying Improvement
to Property, or may otherwise remedy the noncompliance, and the Applicant shall reimburse the
Association, upon demand, for all expenses incurred therewith. If such expenses are not promptly
repaid by the Applicant or Owner to the Association, the Board may levy a Reimbursement
Assessment against the Owner of the Lot for such costs and expenses. The right of the Association
to remedy or remove any noncompliance shall be in addition to all other rights and remedies which
the Association may have at law, in equity, or under this Declaration. The Applicant and Owner of
the Lot shall have no claim for damages or otherwise on account of the entry upon the Property and
removal of the noncomplying Improvement to Property.
4.21 No Implied Waiver or Estoppel. No action or failure to act by the Design Review
Committee or by the Board of Directors shall constitute a waiver or estoppel with respect to future
action by the Design Review Committee or the Board of Directors with respect to any Improvement
to Property. Specifically, the approval of the Design Review Committee of any Improvement to
Property shall not be deemed a waiver of any right or an estoppel to withhold approval or consent
Declaration of Covenants Conditions and Restrictions for The Reserve at Elk Meadows PUD Page 26 of 63
for any similar Improvement to Property or any similar proposals, plans, specifications, or other
materials submitted with respect to any other Improvement to Property.
4.22 Committee Power to Grant Variances. The Design Review Committee may authorize
variances from compliance with any of the provisions ofthis Declaration, including restrictions upon
height, size, floor area, or placement of structures or similar restrictions, when circumstances such
as topography, natural obstructions, hardship, aesthetic or environmental consideration may require.
Such variances must be evidenced in writing and shall become effective when signed by at least a
majority of the members of the Design Review Committee. If any such variance is granted, no
violation of the provisions of this Declaration shall be deemed to have occurred with respect to the
matter for which the variance was granted; provided, however, that the granting of a variance shall
not operate to waive any of the provisions of this Declaration for any purpose except as to the
particular property and particular provision hereof covered by the variance, nor shall the granting of
a variance affect in any way the Owner's obligation to comply with all governmental laws and
regulations affecting the property concerned, including, but not limited to, zoning ordinances and
setback lines or requirements imposed by any governmental authority having jurisdiction.
4.23 Meetings of Committee. The Design Review Committee shall meet from time to time
as necessary to perform its duties hereunder. The Design Review Committee may from time to time,
by resolution in writing adopted by a majority of the members, designate a representative (the
"Committee Representative") (who may but need not be one of its members) to take any action or
perform any duties for or on behalf of the Design Review Committee, except the granting of
approval to any Improvement to Property and granting of variances. The action of such Committee
Representative within the authority of such Committee Representative or the written consent or the
vote of a majority of the members of the Design Review Committee shall constitute action of the
Design Review Committee.
4.24 Records of Actions. The Design Review Committee shall report in writing to the
Board of Directors all final actions of the Design Review Committee, and the Board shall keep a
permanent record of such reported action.
4.25 Estoppel Certificates. The Board of Directors shall, upon the reasonable request of
any interested Person and after confirming any necessary facts with the Design Review Committee,
furnish a certificate with respect to the approval or disapproval of any Improvement to Property or
with respect to whether any Improvement to Property was made in compliance herewith. Any
Person, without actual notice to the contrary, shall be entitled to rely on said certificate with respect
to all matters set forth therein.
4.26 Nonliability of Committee Action. There shall be no liability imposed on the Design
Review Committee, any member of the Design Review Committee, any Committee Representative,
the Association, any member of the Board of Directors, or Declarant for any loss, damage, or injury
arising out of or in any way connected with the performance of the duties of the Design Review
Committee unless due to the willful misconduct of the party to be held liable. In reviewing any
matter, the Design Review Committee shall not be responsible for reviewing, nor shall its approval
Declaration of Covenants Conditions and Restrictions for The Reserve at Elk Meadows PUD Page 27 of 63
of an Improvement to Property be deemed approval of the Improvement to Property from the
standpoint of safety, whether structural or otherwise, or conformance with building codes or other
governmental laws or regulations. In accordance with the foregoing, any Owner seeking the
approval of the Design Review Committee for any matter shall provide the Design Review
Committee with a written waiver reaffirming the foregoing and releasing the Design Review
Committee, any Member of the Design Review Committee, any Committee Representative, the
Association, any member of the Board of Directors and the Declarant from any and all liability
arising from or related to the Design Review Committee's approval of such Improvement.
4.27 Construction Period Exception. During the course of actual construction of any
permitted structure or Improvement to Property, and provided construction is proceeding with due
diligence, the Design Review Committee shall temporarily suspend the provisions contained in this
Declaration as to the Property upon which the construction is taking place to the extent necessary
to permit such construction, provided that, during the course of any such construction, nothing is
done which will result in a violation of any of the provisions of this Declaration upon completion
of construction and nothing is done which will constitute a nuisance or unreasonable interference
with the use and enj oyment of other property. The Design Review Committee shall promulgate rules
and regulations concerning the use of temporary sanitary facilities and trash dumpsters, type of
construction vehicles allowed on and use of the streets, roads, and rights-of-way located within the
Common Interest Community and Association Properties, and other activities associated with the
construction of Improvements to Property, provided said rules and regulations shall not interfere with
the rights existing under the Permitted Exceptions.
ARTICLE 5.
ASSOCIATION PROPERTIES
5.1 Division Into Lots. As of the recording of this Declaration, the Common Interest
Community has been divided into Lots [to be inserted at time of first final plat]. Each Lot
does or will consist of a fee simple interest in such Lot.
5.2 Delineation of Lot Boundaries. The boundaries of each Lot are delineated and
designated by an identifying number on the Plat, and those numbers are set forth in Exhibit B. The
Lot lines shown on the Plat shall be the perimeter boundaries of the Lots.
5.3 Member's Rights of Use and Enjoyment Generally. Unless otherwise provided in this
Declaration, all Members, their immediate family, dependents, and their Occupants may use the
Association Properties, subject to the provisions of this Declaration and the Association Documents,
including the Rules and Regulations. No Owner or Occupant shall place any structure or
improvement whatsoever upon the Common Areas, nor shall any Owner or Occupant engage in any
activity which will temporarily or permanently impair free and unobstructed access to or use of all
parts of the Commons Areas by all Owners and by the Association.
Declaration of Covenants Conditions and Restrictions for The Reserve at Elk Meadows PUD Page 28 of 63
Notwithstanding the foregoing, the Association shall take no action which unreasonably
restricts any Owner's or Occupant' s right and easement of access over, across and upon the Common
Areas to his Lot.
5.4 Right of Association to Regulate Use. The Association, acting through the Board,
shall have the power to regulate use of Association Properties to further enhance the overall rights
of use and enjoyment of all Members through the promulgation of the Rules and Regulations. Such
Rules and Regulations shall not be inconsistent with the terms of this Declaration and shall be
equitable and reasonable. The Board of Directors shall provide thirty (30) days written notice prior
to the adoption or amendment of any Rules and Regulations and provide for a reasonable opportunity
for Owners to comment at an open meeting of the Board of Directors on the proposed adoption or
amendment of any Rules and Regulations. Copies of the currently effective Rules and Regulations
shall be made available to each Owner and Occupant upon request and payment of the reasonable
expense of copying the same. Each Owner and Occupant shall comply with such Rules and
Regulations and each Owner shall see that Occupants claiming use through such Owner comply with
such Rules and Regulations. Such Rules and Regulations shall have the same force and effect as if
they were set forth in and were part of this Declaration. In the event of conflict between the Rules
and Regulations and the provisions of this Declaration, the provisions of this Declaration shall
govern. Such Rules and Regulations may establish penalties (including the levying and collection
of fines) for the violation of such Rules and Regulations or any provision of this Declaration or the
Association Documents.
5.5 Inseparability of Lot. No part of a Lot or of the legal rights comprising ownership
of a Lot may be partitioned or separated from any other part thereof during the period of ownership
prescribed in this Declaration. Subject to Section 5.1 above, each Lot shall always be conveyed,
transferred, devised, bequeathed, encumbered, and otherwise affected only as a complete Lot. Every
conveyance, transfer, gift, devise, bequest, encumbrance, or other disposition of a Lot or any part
thereof shall be presumed to be a disposition of the entire Lot, together with all appurtenant rights
and interests created by law or by this Declaration including the Owner's membership in the
Association. This provision is not intended, however, to prohibit joint or common ownership by two
or more Persons of a Lot.
5.6 Description of a Lot. Every contract, deed, lease, security interest and every other
legal document or instrument affecting title to a Lot may legally describe the Lot as follows:
Lot , The Reserve at Elk Meadows PUD, according to the Final Plat recorded
, 200_ as Reception No. , and according to the Declaration of
Covenants, Conditions and Restrictions for The Reserve at Elk Meadows PUD recorded
, 200_ in Book at Page , all in the Office of the Clerk and
Recorder of Garfield County, Colorado.
Such description shall be legally sufficient for all purposes to sell, convey, transfer, encumber
or otherwise affect the Lot and its appurtenances, including all improvements thereon, and to
incorporate all of the rights, interest, obligations, restrictions and burdens appurtenant or incident
Declaration of Covenants Conditions and Restrictions for The Reserve at Elk Meadows PUD Page 29 of 63
to the ownership of a Lot as set forth in this Declaration and the Plat. Each such description shall
be construed to include a non-exclusive easement over the Common Areas for appropriate ingress
and egress to and from each Lot and a non-exclusive right to use and enjoy the Common Areas,
subject to all applicable provisions of this Declaration.
5.7 No Partition of Association Properties. Subject to the provisions of this Article and
Article 7 below, the Common Areas shall be owned by the Association as herein provided and shall
remain physically undivided. No Owner shall bring any action for a partition or division of the
Common Areas. By acceptance of a deed or other instrument of conveyance or assignment to a Lot,
each Owner of the Lot shall be deemed to have specifically waived such Owner's right to institute
or maintain a partition action or any other cause of action designed to cause a division of the
Common Areas, and this Section 5.7 maybe pleaded as a bar to the maintenance of such an action.
Any Owner who shall institute or maintain any such action shall be liable to the Association and
hereby agrees to reimburse the Association for the Association's costs, expenses, and reasonable
attorneys fees in defending any such action. Such amounts shall automatically become a
Reimbursement Assessment determined and levied against such Owner's Lot and enforced by the
Association in accordance with Sections 9.25, 9.26, and 9.28 below.
Not withstanding the foregoing, the Association shall have the right to dedicate, sell or
otherwise transfer all or any part of the Common Areas to any public, governmental, or a quasi -
governmental agency, authority or utility for purposes and subject to such conditions as may be
agreed to by the Owners. However, such dedication or transfer of the Common Areas shall not be
effective unless an instrument has been signed by Owners holding an aggregate interest equal to at
least sixty-seven percent (67%) of the total Association votes allocated to the Owners, agreeing to
such dedication, sale or transfer. Notwithstanding the preceding sentence, the granting of easements
by a majority of voting Directors of the Board, for public utilities, for access by pedestrians or for
other public purposes not inconsistent with the intended use of the Common Areas shall not be
deemed a transfer requiring such consent of the Owners within the meaning of this Section.
5.8 Redesignation of Common Areas. Any Redesignation of the boundaries of the
Common Areas shall be approved by a majority vote of the Board of Directors.
5.9 Liability of Owners for Damage. Each Owner shall be liable to the Association for
any damage to Association Properties or for any expense or liability incurred by the Association
which may be sustained by reason of the negligence or willful misconduct of such Owner or any
Occupant using the Association Properties through such Owner and for any violation by such Owner
or any such Occupant of this Declaration or any Rule and Regulation adopted by the Association.
Each Owner shall indemnify and hold the Association harmless from any and all loss, damage,
expense, or liability arising from any negligence or willful misconduct of any Owner or Occupant
using the Association Properties through such Owner. The Association shall have the power, as
elsewhere provided in this Declaration, to levy and collect a Reimbursement Assessment against a
Member, after Notice and Hearing, to cover the costs and expenses incurred by the Association on
account of any such damage or any such violation of this Declaration or of such Rules and
Declaration of Covenants Conditions and Restrictions for The Reserve at Elk Meadows PUD Page 30 of 63
Regulations or for any increase in insurance premiums directly attributable to any such damage or
any such violation.
5.10 Association Duties if Damage, Destruction, or Required Improvements. In the event
of damage to Association Properties by fire or other casualty or in the event any governmental
authority shall require any repair, reconstruction, or replacement of any Association Properties, the
Association shall have the duty to repair, reconstruct, or replace the same, to the extent funds are
available to do so. Any insurance proceeds payable by reason of damage or destruction of
Association Properties by fire or other casualty shall be paid to the Association and shall be used,
to the extent necessary, to pay the costs of repair, reconstruction, or replacement. If funds from
insurance proceeds or from reserve for replacement are insufficient to pay all costs of repair,
reconstruction, or replacement of improvements damaged or destroyed, or if the Association is
required to make repairs, replacements, or improvements by governmental authorities, the
Association may, in order to make up any deficiency in the insurance proceeds or to pay for the
required repair, replacement, or improvement, levy a Special Assessment in accordance with Section
9.16, or if a Member or group of Members is liable for such damage, levy a Reimbursement
Assessment against the Member or group of Members responsible therefor, to provide the additional
funds necessary. Repair, reconstruction, or replacement of Association Properties shall be done
under such contracting and bidding procedures as the Association shall determine are appropriate.
If insurance proceeds available to the Association on account of damage or destruction exceed the
cost of repair, reconstruction, and replacement, the Association may use the same for future
maintenance, repair, improvement, and operation of other Association Properties or any other use
deemed appropriate by the Board.
5.11 Delegation of Management and Maintenance Duties. The Association, through the
Board of Directors, may delegate all or any part of their powers and duties to one or more Managing
Agents, including Declarant. Notwithstanding the delegation by the Board of Directors to one or
more Managing Agents, such parties shall not be relieved of their responsibilities under this
Declaration and no such delegation shall modify specific requirements in the Association Documents
for approval of certain actions by the Board of Directors or by Members of the Association.
5.12 Limitation Upon Liabi f ity of Association. NOTWITHSTANDING THE DUTY OF
THE ASSOCIATION TO MAINTAIN AND REPAIR PORTIONS OF THE COMMON INTEREST
COMMUNITY, THE ASSOCIATION SHALL NOT BE LIABLE TO OWNERS FOR INJURY OR
DAMAGE, OTHER THAN FOR THE COST OF MAINTENANCE AND REPAIR, CAUSED BY
ANY LATENT CONDITION OF THOSE PORTIONS OF THE COMMON INTEREST
COMMUNITY TO BE MAINTAINED AND REPAIRED BY THE ASSOCIATION, OR CAUSED
BY THE ELEMENTS OR OTHER OWNERS AND OCCUPANTS.
5.13 Association Powers in the Event of Condemnation. If any Association Properties or
interests therein are taken under exercise of the power of eminent domain or by private purchase in
lieu thereof, the award in condemnation or the price payable shall be paid to the Association, except
to the extent payable to any other Person with an interest in such property, including any Mortgagee
of such property. The Association shall have the exclusive right to participate in such condemnation
Declaration of Covenants Conditions and Restrictions for The Reserve at Elk Meadows PUD Page 31 of 63
proceedings and to represent the interests of all Owners or other Persons therein. Any award or
funds received by the Association shall be held by the Association in the Maintenance Fund as
determined by the Board, as a reserve for future maintenance, repair, reconstruction, or replacement
of Association Properties or may be used for Improvements or additions to or operation of
Association Properties or such other uses deemed appropriate by the Board. Except as may
otherwise be provided by the Act, no Owner shall be entitled to participate as a party or otherwise
in any condemnation proceedings nor to receive any proceeds therefrom.
5.14 Title to Association Properties on Dissolution of Association. In the event of
dissolution of the Association, the Association Properties shall, to the extent permitted by law and
reasonably possible, be conveyed or transferred to an appropriate public, governmental or quasi -
governmental agency or organization or to a nonprofit corporation, association, trust, or other
organization, to be used, in any such event, for the common benefit of Owners for similar purposes
for which the particular Association Property was held by the Association. To the extent the
foregoing is not possible, the Association Properties shall be sold or disposed of and the proceeds
from the sale or disposition shall be distributed to the Owners. The portion of such proceeds to be
allocated to each Lot shall be the product derived by multiplying the total proceeds from such sale
or disposition by a fraction, the numerator of which shall be one (1) and the denominator of which
shall be the number of Lots located in the Common Interest Community at the time of such sale or
distribution. For the purpose of this Section 5.14, should any Lots be combined pursuant to Section
3.22 hereof, each Lot so combined shall be counted separately in apportioning such proceeds.
ARTICLE 6.
DECLARANT'S RESERVED RIGHTS
Declarant hereby expressly reserved to itself and its successors and assigns the following
described rights, which include development rights and special Declarant rights, any one or more of
which rights may be exercised, in the sole and absolute discretion of Declarant, at any time and from
time to time during the period commencing upon the Recording of this Declaration in the County
and ending on the date of termination of such rights established under Section 6.12 below. It is
expressly understood that Declarant shall not be obligated to exercise any of these reserved rights.
Except as limited by this Article 6, such reserved rights may be exercised upon or in
connection with all or any portion of the Common Interest Community, the Annexable Property
and/or the additional unspecified real estate referred to in Section 6.8 below. Such rights may be
exercised with respect to different parcels of said real estate at different times, and in connection
therewith Declarant hereby states that (i) no assurances are made regarding the boundaries of said
different parcels or with respect to the order in which such parcels may be subjected to the exercise
of these reserved rights, even if a reference to a phase or phasing appears in a legal description, Plat,
P.U.D. agreement or other agreement relating to the property, and (ii) if a particular reserved right
is exercised in any portion of the real estate subject to that reserved right, that reserved right is not
required to be exercised in all or any portion of the remainder of that real estate.
Declaration of Covenants Conditions and Restrictions for The Reserve at Elk Meadows PUD Page 32 of 63
The reserved rights hereinafter set forth may not be amended, modified, terminated or
otherwise altered in any way without the express prior written consent of Declarant. All
conveyances ofLots and other portions of the Common Interest Community hereafter made, whether
by Declarant or otherwise, shall be deemed and construed to reserve to Declarant and/or to grant to
Declarant all of the rights reserved by and to Declarant in this Article 6, even though no specific
reference to such rights appears in the conveyance instruments. Nothing in this Article 6 shall limit
or impair any other rights granted or reserved to Declarant by other provisions of this Declaration
or of any Supplemental Declaration.
The following rights are hereby reserved to Declarant and its successors and assigns:
6.1 Completion of Improvements. The right throughout the Common Interest
Community to complete Improvements indicated on any Plat, as defined in Paragraph 2.32 hereof,
as such plats and Declarations may be amended from time to time and the right to construct and
complete Improvements required by the terms of any Subdivision Improvements Agreements with
the County. Furthermore, the right to create, grant and/or use and enjoy additional non-exclusive
easements, and to relocate existing platted easements, upon or across any portion of the Common
Interest Community except Building Envelopes, as may be reasonably required for the completion
by Declarant of the above-described Improvements or the effective exercise by Declarant of any of
the other reserved rights described in this Article 6.
6.2 Sales, Marketing and Management. The right to construct, locate or operate, and to
maintain upon, and to remove from, Lots owned by Declarant, and/or the Common Areas, in the
discretion of Declarant, and in such number, size and location as may be reasonably required by
Declarant in connection with the completion of Improvements, the management of the development,
and/or the promotion, marketing, sale or rental of Lots, the following:
6.2.1 Sales offices, management offices, and/or construction offices, and structures
containing or relating to the same. Such offices, to the extent they are not situated on a Lot
or are hereby declared to be personal property of the Declarant and shall in any case be
removable by Declarant or its successors or assigns promptly upon the Declarant or its
successors or assigns ceasing to be a Lot Owner;
6.2.2 Signs identifying and advertising the Common Interest Community and the
Lots therein, or relating to development or construction thereon;
6.2.3 Model residences constructed or to be constructed on Lots;
6.2.4 Parking areas and facilities, and lighting, necessary or desirable in the
marketing of the Common Interest Community and the Lots to prospective Owners;
6.2.5 Employees in offices; equipment; vehicles; and marketing and construction
materials;
Declaration of Covenants Conditions and Restrictions for The Reserve at Elk Meadows PUD Page 33 of 63
6.2.6 Together with the right to attract, invite or bring prospective purchasers of
Lots into the Common Interest Community at all times, and to permit them to use and enjoy
the Common Areas.
6.3 Merger. The right to merge or consolidate the Common Interest Community with
another common interest community of the same form of ownership.
6.4 Declarant Control of Association. The right to appoint or remove any Executive
Board member or officer of the Association, as more specifically set forth in Section 7.4 below, but
only for and during the "Period of Declarant Control of Association" as defined in said Section 7.4.
6.5 Declarant's Rights to Grant and Create Easements. The right to grant, create or
reserve temporary and permanent easements or to relocate existing easements for (a) access to and
egress from or through the Common Interest Community; (b) access to and egress from or through
the Mountain Park; (c) utilities, including, but not limited to, water, sewer and electrical lines; (d)
drainage, irrigation and ditch and pipeline easements; (e) access across private roads located within
the Common Interest Community to the Annexable Property; and (f) other purposes incident to the
development and sale of the Common Interest Community (collectively the "Easements"). Such
Easements may be located by Declarant in, on, under, over, and across Association Properties or
upon, Lots within the Common Interest Community so long as such easements do not lie within any
Building Envelope. Declarant shall further have the right to grant to public or quasi -public entities
the right to construct certain storage or other similar facilities on the Association Properties in
connection with the provision of utilities or other services to the Common Interest Community. Any
such facilities so located, and of all distributions lines located in any easements created pursuant to
the provisions hereof, or otherwise, shall, in of all events, belong to the provider of such services.
6.6 Annexation of Additional Properties. The right to annex to the Common Interest
Community all or any part of the Annexable Property described on attached Exhibit C and to modify
each Owner's Allocated Interests accordingly. Alternatively, Declarant shall have the right and is
authorized to develop portions of the Annexable Property and/or to convey portions of the
Annexable Property to such third party or parties as Declarant may deem appropriate, prior to and
instead of annexing them to the Common Interest Community, whether for purposes consistent with
this Declaration or otherwise. Declarant makes no assurances that all or any portion of the
Annexable Property will be added to the Common Interest Community and Declarant reserves the
right to annex all or any portion of the Annexable Property to the Common Interest Community in
any order it deems appropriate in its sole and absolute discretion.
6.7 Annexation Procedure. The annexation of additional real property to the Common
Interest Community shall be accomplished by the Recording by Declarant with the Clerk and
Recorder of the County of a Supplemental Declaration containing a legal description of the land area
to be added to the Common Interest Community and amending this Declaration accordingly, together
with a Supplemental Plat thereof. The Supplemental Declaration shall assign an identifying number
to each Lot created thereby, and shall reallocate the Allocated Interests of all Lot Owners in the
Common Interest Community in accordance with the definition of Allocated Interests contained in
Declaration of Covenants Conditions and Restrictions for The Reserve at Elk Meadows PUD Page 34 of 63
this Declaration. In no event shall any annexation increase the number of Lots in the Common
Interest Community beyond the one hundred and eighty-nine (189) Lot maximum stated in the
Recitals to this Declaration. The Supplemental Declaration shall also describe any Common Areas,
Limited Common Areas, or limited common elements thereby created, and in the case of Limited
Common Areas or limited common elements, the Supplemental Declaration shall designate the
Lot(s) to which each area or element is allocated.
The annexation ofthe Annexable Property maybe accomplished by successive Supplemental
Declarations, in no particular or pre -established order, and may provide that property annexed
thereby (the "Annexed Property") is phased so that it is made subject to this Declaration at different
times. Upon Recording of a Supplemental Declaration, the Annexed Property described therein shall
be subject to all of the covenants, conditions, restrictions, limitations, reservations, exceptions,
equitable servitudes, and other provisions set forth in this Declaration, except to the extent
specifically stated in the Supplemental Declaration or as modified thereby. Any such Supplemental
Declaration may impose on the Annexed Property described therein additional covenants, conditions,
restrictions, limitations, reservations, exceptions, equitable servitudes, and other provisions than
those set forth in this Declaration, taking into account the unique and particular aspects of the
Annexed Property covered thereby and of the proposed development thereof. Furthermore,
Declarant shall have the right to reserve in such Supplemental Declaration any development rights
that Declarant considers necessary or appropriate, provided that such provision shall not extend the
termination date for the exercise of Declarant's development rights as set forth in Section 6.12
below. A Supplemental Declaration may provide for a subassociation of Owners within the
Annexed Property described in the Supplemental Declaration and for the rights of the subassociation
to assess such Owners for common expenses unique to those Owners. In the event the Annexed
Property shall not be served by utilities described in this Declaration, including the Irrigation System,
the Wastewater Treatment Facility, or the domestic water system governed by the Water Association,
this right to provide for a subassociation of Owners in a Supplemental Declaration shall include, but
not be limited to, the right to provide for a subassociation of Owners to govern, control and levy
assessments for the use of any utilities unique to those Owners and further described in the
Supplemental Declaration.
6.8 Annexation of Additional Unspecified Real Estate. The right to annex additional,
unspecified real estate to the Common Interest Community to the fullest extent permitted by the Act.
In the event that Declarant elects to annex any such additional unspecified real estate, Declarant shall
annex such property to the Common Interest Community in accordance with the provisions of
Section 6.7 above.
6.9 Withdrawal Rights and Procedure. The right at any time and from time to time to
withdraw from the Common Interest Community (and any annexations thereto) any Declarant -owned
Lot or Lots, or Common Areas.
6.9.1 Withdrawal may only be accomplished by the recording by Declarant of an
amendment to this Declaration or any Supplemental Declaration affected by the withdrawal,
and an amendment to the Plat or any Supplemental Plat affected by the withdrawal. Upon
Declaration of Covenants Conditions and Restrictions for The Reserve at Elk Meadows PUD Page 35 of 63
the recording of such amendments, the withdrawn Lots, or Common Areas shall no longer
be part of the Common Interest Community or subject to this Declaration or any applicable
Supplemental Declaration in any way.
6.9.2 Each Declarant -owned Lot, and each Declarant -owned Common Area, is
hereby described and declared to be a separate portion of real estate that is subject to this
right of withdrawal, and Declarant expressly reserves the right to withdraw one or more
Declarant -owned Lots and/or all or a portion of any Declarant -owned Common Area from
the Common Interest Community. Once a Lot has been conveyed to a Lot Owner other than
Declarant, that portion of the real estate is no longer subject to this right of withdrawal.
Likewise, once a Common Area has been conveyed to the Association, that portion of the
real estate is no longer subject to this right of withdrawal.
6.9.3 The withdrawn property shall be subject to whatever easements, if any, may
be reasonably necessary for access or utility service to, or operation or management or use
or enjoyment of, the Common Interest Community or any part thereof. Similarly, the
owner(s) of the withdrawn property shall have whatever easements, if any, are reasonably
necessary for access or utility service to or for use or enjoyment of the withdrawn property
over and across the Common Areas within the Common Interest Community. At the time
any withdrawal of real estate is accomplished, Declarant shall record whatever documents
are necessary to establish such reciprocal easements in the County records.
6.10 Subdivision of Blocks or Lots or Units: Conversions of Lots or Units into Master
Common Area. Declarant shall have and hereby reserves the right to subdivide any Declarant -owned
Block or Lot located within the Common Interest Community to create additional Lots, subject to
the maximum number of Lots set forth in the Recitals to this Declaration; provided, however, that
such subdivision is consistent with the PUD for The Reserve at Elk Meadows or that said PUD is
amended if necessary, and that the subdivision is accomplished in compliance with Garfield County
subdivision requirements. Declarant shall also have and hereby reserves the right to convert one or
more Lots into Common Area. Upon the subdivision of any Block or Lot or the conversion of any
Lot(s) into Common Area in accordance with the terms and conditions contained herein, the
Allocated Interests of all Owners shall be reallocated in accordance with the definition of Allocated
Interests contained in this Declaration.
6.11 Effect of Expansion or Contraction. In the event any real property is annexed to the
Common Interest Community as provided herein, or if any real property is withdrawn from the
Common Interest Community as provided herein, the definitions used in this Declaration shall be
automatically expanded or contracted to encompass and refer to the Common Interest Community
as expanded or contracted. Common Area shall also mean and include all properties located from
time to time within the Annexed Property that fall within the definition of Common Area contained
in this Declaration, less any Common Area removed by withdrawal. Every Owner of a Lot in the
area annexed to the Common Interest Community shall, by virtue of ownership of such Lot and upon
recordation of the Supplemental Declaration annexing such property to the Common Interest
Community, be a Member of the Association and, except as may be otherwise provided in the
Declaration of Covenants Conditions and Restrictions for The Reserve at Elk Meadows PUD Page 36 of 63
Supplemental Declaration, shall be entitled to the same rights and privileges and subject to the same
duties and obligations as any other Association Member. Regular Assessments for Lots within the
Annexed Property shall commence as of the date of the Recording of the Supplemental Declaration
and shall be prorated as of such date.
The recording of amendments to the Declaration and Plat which reallocate the Allocated
Interests in the Common Interest Community, shall automatically:
6.11.1 Vest in each existing Lot Owner the reallocated Allocated Interests
appurtenant to the Owner's Lot; and
6.11.2 Vest in each existing Mortgagee a perfected security interest in the reallocated
Allocated Interests appurtenant to the encumbered Lot.
6.12 Other Reserved Development Rights. The right with respect to all or any Declarant -
owned portion of the Common Interest Community (including the Lots) to (a) create Common Areas
or Limited Common Areas; (b) create additional Lots, subject to the maximum set forth in the
Recitals to this Declaration; (c) combine Lots; (d) convert Lots into Common Areas; (e) convert
Common Areas into Lots; and (f) create Common Elements and/or Limited Common Elements.
6.13 Transfer of Declarant's Reserved Rights. Any one or more rights created or reserved
for the benefit of Declarant under this Article 6 or elsewhere in this Declaration or in any
Supplemental Declaration may be transferred to any Person by an instrument describing the right or
rights transferred and Recorded in the County. Such instrument shall be executed by the transferor
Declarant and the transferee.
6.14 Termination of Declarant' s Reserved Rights. With the exception of Declarant's right
to appoint or remove Executive Board members and officers of the Association, which is addressed
in Section 7.5 below, the rights reserved to Declarant in this Article 6 shall automatically terminate
and expire upon the first to occur of (i) the date which is thirty (30) years after the Recording of this
Declaration, or (ii) Declarant's relinquishment and surrender of such rights by Recorded instrument.
Declarant may from time to time relinquish and surrender one or more but less than all of the
reserved rights, in which event the unrelinquished reserved rights shall remain fully valid and
effective for the remainder of the term thereof. The Association may extend the time period for
exercise of a development right, or reinstate a lapsed development right, subject to whatever terms,
conditions and limitations the Association may impose on the subsequent exercise of the
development right. The extension or renewal of a development right and any terms, conditions and
limitations shall be included in an amendment executed by Declarant or the owner of the real estate
subject to the development right and the Association.
Declaration of Covenants Conditions and Restrictions for The Reserve at Elk Meadows PUD Page 37 of 63
ARTICLE 7.
ASSOCIATION OPERATION
7.1 Association. The Association has been or will be formed as a Colorado nonprofit
corporation under the Colorado Revised Nonprofit Corporation Act prior to the date of the
conveyance of the first Lot. The Association shall have the duties, powers, and rights set forth in
the Act, the Colorado Revised Nonprofit Corporation Act, this Declaration and in its Articles of
Incorporation and Bylaws. As more specifically set forth hereinafter, the Association shall have a
Board of Directors to manage its affairs. Except as may be provided herein, the Articles of
Incorporation or the Bylaws, the Board of Directors shall be elected by Owners acting in their
capacity as Members of the Association.
7.2 Association Board of Directors. The affairs of the Association shall be managed by
a Board of Directors. The number, term and qualifications of the Board of Directors shall be fixed
in the Articles of Incorporation and Bylaws. The Board of Directors may, by resolution, delegate
portions of its authority to officers of the Association, but such delegation of authority shall not
relieve the Board of Directors of the ultimate responsibility for management of the affairs of the
Association. Action by or on behalf of the Association may be taken by the Board of Directors or
any duly authorized executive committee, officer, agent, or employee without a vote of Members,
except as otherwise specifically provided in this Declaration.
A quorum shall be deemed present throughout any meeting of the Board of Directors if
Directors entitled to cast at least fifty percent (50%) of the votes on the Board of Directors are
present at the beginning of the meeting or grant their proxy as provided in Colorado Revised Statutes
§ 7-128-205(4). With the exception of matters that may be discussed in executive session, as set
forth in § 38-33.3-308(3-7) of the Act, all regular and special meetings of the Board of Directors or
any committee thereof shall be open to attendance by all Members in the Association or their
representatives. Without limiting the generality of the foregoing, no rule or regulation may be
validly adopted during an executive session. Agendas for meetings of the Board of Directors shall
be made reasonably available for examination by all Members or their representatives.
The Board of Directors shall have all powers, authority and duties granted or delegated to it
by the Act, this Declaration, and the Association Documents. Except as provided in the Act, this
Declaration, or the Association Documents, the Board of Directors may act in all instances on behalf
of the Association.
The Board of Directors may not, however, act on behalf of the Association to amend this
Declaration, to terminate the Common Interest Community, or to elect Directors or determine the
qualifications, powers and duties, or terms of office of Directors but the Board of Directors may fill
Director vacancies in its membership for the unexpired portion of any term.
The Board of Directors may, by resolution, delegate portions of its authority to officers of
the Association, but such delegations of authority shall not relieve the Board of Directors of the
Declaration of Covenants Conditions and Restrictions for The Reserve at Elk Meadows PUD Page 38 of 63
ultimate responsibility for management ofthe affairs of the Association. No Director or officer shall
be liable for actions taken or omissions made in performance of such Director's or officer's duties
except for wanton and willful acts or omissions.
7.3 Membership in Association. Each Owner of a Lot within the Common Interest
Community shall be a Member of the Association and shall remain a Member for the period of the
Owner's ownership of a Lot. There shall be one Membership in the Association for each Lot within
the Common Interest Community. The Person or Persons who constitute the Owner of a Lot shall
automatically be the holder of the Membership appurtenant to that Lot, and the Membership
appurtenant thereto shall automatically pass with fee simple title to the Lot. Declarant shall hold a
Membership in the Association for each Lot owned by Declarant. Membership in the Association
shall not be assignable separate and apart from fee simple title to a Lot. However, any Owner may
appoint, in a written instrument furnished to the secretary of the Association, a delegate to exercise
the rights of such Owner as a Member of the Association, and in the event of such appointment, the
delegate shall have the power to cast votes on behalf of the Owner as a Member of the Association,
subject to the provisions of and in accordance with the procedures more fully described in the
Bylaws of the Association.
7.4 Voting Rights of Members. Each Member shall have the right to cast one vote for
each Lot owned by such Member in accordance with the Bylaws, provided that in no event shall
there be more than one (1) vote per Lot. Occupants of Lots shall not have voting rights. If title to
a Lot is owned by more than one (1) Person, such persons shall collectively vote their interest as a
single vote. If only one of the multiple Owners of a Lot is present at an Association meeting, such
Owner is entitled to cast the vote allocated to the Lot. If more than one of the multiple Owners is
present, the vote allocated to that Lot may be cast only in accordance with the agreement of a
majority in interest of the Owners. There is a majority agreement if any of the multiple Owners casts
the vote allocated to that Lot without protest being made promptly to the person presiding over the
meeting by any of the other Owners of the Lot. In the event that a protest is made by one or more
multiple Owners, and a majority -in -interest of the multiple Owners of a Lot cannot agree on how to
cast their vote, any vote cast for that Lot shall be null and void with regard to the issue being voted
upon. Such multiple Owners and their Lot shall nevertheless be counted in determining the presence
of a quorum with respect to the issue being voted upon.
7.5 Declarant Control. Notwithstanding anything contained herein to the contrary,
Declarant shall be entitled to select and appoint, in its sole discretion, Directors, in accordance with
the Bylaws (the "Declarant's Control Period"), until the expiration of the Declarant's Control Period
as defined below. Provided, however, the right of the Declarant to select and appoint Directors shall
be subject to the provisions of Section 5.5 of the Bylaws. The Declarant's Control Period shall cease
on the happening of any of the following events, whichever occurs earlier: (a) sixty (60) days after
conveyance of seventy-five percent (75 %) of the total number of Lots that may be created within the
Common Interest Community have been conveyed to Persons other than Declarant; (b) two (2) years
after the last conveyance of a Lot by Declarant in the ordinary course of business; (c) two (2) years
after any right to add new Lots was last exercised by Declarant; or (d) when, in its discretion,
Declarant so determines.
Declaration of Covenants Conditions and Restrictions for The Reserve at Elk Meadows PUD Page 39 of 63
7.6 Termination of Contracts and Leases of Declarant. The following contracts and
leases, if entered into before the Board of Directors elected by the Owners pursuant to Section 38-
33.3-303(7) of the Act takes office, may be terminated without penalty by the Association at any
time after the Board of Directors elected by the Owners pursuant to said Section 38-33.3-303(7)
takes office, upon no less than ninety (90) days notice to the other party: (i) any management
contract, employment contract or lease of recreational or parking areas or facilities; (ii) any other
contract or lease between the Association and Declarant or an affiliate ofDeclarant; (iii) any contract
or lease that is not bona fide or was unconscionable to the Owners at the time entered into under the
circumstances then prevailing.
7.7 Determination of Member Voting Privileges. Notwithstanding anything to the
contrary contained herein, only Members whose voting rights are in good standing under the
Associations' Bylaws (e.g., voting rights which have not been suspended as provided therein) shall
be entitled to vote on Association matters. In accordance therewith, any and all provisions contained
herein requiring the approval of a requisite percentage of members of the Association shall be
deemed satisfied when the requisite percentage of members entitled to vote has been met.
7.8 Registration of Owners. Each Owner shall register with the Association upon such
Owner's acquisition of a Lot within the Common Interest Community. Such registration shall be
completed by such owner at the time such Owner closes the purchase of a Lot within the Common
Interest Community and shall be delivered to the Association within seven days of the date of such
closing. Such registration shall be in a form prescribed by the Association and shall include: (1) a
mailing address where notices or demands intended to be served upon such Owner may be mailed
by the Association; (2) a designation of a voting representative for such Lot; and (3) an
acknowledgment that such Owner has: (a) received a copy of this Declaration and the Bylaws of the
Association; (b) that such Owner has read and understands the same; and (c) that such Owner is
bound by the terms and provisions of the Declaration and the Bylaws.
ARTICLE 8.
DUTIES AND POWERS OF ASSOCIATION
8.1 General Duties and Powers of Association. The Association has been or will be
formed to further the common interests of the Members and to manage the affairs of the Common
Interest Community. The Association, acting through the Board or Persons to whom the Board has
delegated such powers, shall have the duties and powers hereinafter set forth and, in general, the
power to do anything that may be necessary or desirable to further the common interests of the
Members, to maintain, improve, and enhance the common interests of the Members, to maintain,
improve, and enhance Association Properties, and to improve and enhance the attractiveness,
aesthetics, and desirability of the Common Interest Community.
8.2 Duty to Accept Property and Facilities Transferred by Declarant. The Association
shall accept title to any real property, including any Improvements thereon and personal property
transferred to the Association by Declarant, and equipment related thereto, together with the
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responsibility to perform any and all Administrative and Association Functions associated therewith;
provided that such property and functions are not inconsistent with the terms of this Declaration.
Property interests transferred to the Association by Declarant may include fee simple title,
easements, leasehold interests, and licenses to use. Any property or interest in property transferred
to the Association by Declarant shall be within the boundaries of the Common Interest Community;
provided, however, that Declarant shall be entitled to transfer and convey the beneficial use of an
easement, subject to, any obligations thereunder, located outside of the Common Interest Community
but which benefits the Association and the Owners. Any property or interest in property transferred
to the Association by Declarant shall, except to the extent otherwise specifically approved by
resolution of the Board of Directors, be transferred to the Association free and clear of all monetary
obligations, liens and encumbrances (other than the lien of property taxes and assessments not then
due and payable), but shall be subject to the terms of this Declaration, and easements, covenants,
conditions, restrictions, and equitable servitudes or other encumbrances of record. Except as
otherwise specifically approved by resolution of the Board of Directors, no property or interest in
property transferred to the Association by Declarant shall impose upon the Association any
obligation to make monetary payments to Declarant or any affiliate of Declarant, including, but not
limited to, any purchase price, rent, charge, or fee.
8.3 Duty to Manage and Care for Association Properties. The Association shall manage,
operate, care for, maintain, and repair all Association Properties and keep the same in an attractive
and desirable condition for the use and enjoyment of the Members.
8.4 Duty to Pay Taxes. The Association shall pay all taxes and assessments levied upon
the Association Properties and all taxes and assessments payable by the Association. The
Association shall have the right to contest any such taxes or assessments provided that the
Association shall contest the same by appropriate legal proceedings which shall have the effect of
preventing the collection of the tax or assessment and the sale or foreclosure of any lien for such tax
or assessment and provided that the Association shall keep and hold sufficient funds to pay and
discharge the taxes and assessments, together with any interest and penalties which may accrue with
respect thereto, if the contest of such taxes is unsuccessful.
8.5 Duty to Maintain Casualty Insurance. The Association shall obtain and keep in full
force and effect at all times, to the extent reasonably obtainable, property insurance on all insurable
Association Properties, including, but not limited to, improvements and personal property owned
by the Association or that must be owned by the Association in the future. Such insurance shall be
for broad form covered causes of loss, including, casualty, fire, and extended coverage insurance
with respect to all insurable Improvements and personal property owned by the Association
including, if available at reasonable cost, coverage for vandalism and malicious mischief and, if
available and if deemed appropriate, coverage for flood, earthquake, and war risk. Such insurance
shall, to the extent reasonably obtainable, be for the full insurable replacement cost of the insured
property, less applicable deductibles at the time the insurance is purchased and at each renewal date,
exclusive of land, excavation, foundations and other items normally excluded from property policies.
Declaration of Covenants Conditions and Restrictions for The Reserve at Elk Meadows PUD Page 91 of 63
8.6 Duty to Maintain Liability Insurance. The Association shall obtain and keep in full
force and effect at all times, to the extent reasonably obtainable, general liability insurance against
claims and liabilities arising in connection with the ownership, existence, use, or management of the
Association Properties and covering public liability for bodily injury and property damage and, if
the Association owns or operates motor vehicles, public liability for bodily injury and property
damage arising as a result of the ownership and operation of motor vehicles. Such liability insurance
for other than motor vehicle liability shall, to the extent reasonably obtainable, (a) have limits of not
less than Five Hundred Thousand Dollars ($500,000) per person and One Million Dollars
($1,000,000) per occurrence; (b) insure the Board, the Association, the Manager, if any, and their
respective employees, agents and all Persons acting as agents; (c) include the Declarant as an
additional insured in such Declarant's capacity as a Member or Board member; (d) include the
Members as an additional insured, but only for claims and liabilities arising in connection with the
ownership, existence, use or management of Association Properties; and (e) cover claims of one or
more insured parties against other insured properties.
8.7 General Provisions Respecting Insurance. Insurance obtained by the Association may
contain such deductible provisions as good business practice may dictate. If the insurance described
is not reasonably available, or if any policy of such insurance is canceled or renewed without a
replacement policy therefor having been obtained by it, the Association shall promptly cause notice
of that fact to be delivered to all Members. The Association may carry any other type of insurance
it considers appropriate in amounts it deems appropriate, to insure the interest of the Association.
Insurance policies carried pursuant to Sections 8.6 and 8.7 shall provide that (a) each Member is an
insured Person under the policy with respect to liability arising out of such Member's interest in the
Association Properties or membership in the Association; (b) the insurer waives its right of
subrogation under the policy against the Association, each member, and any Person claiming by,
through, or under such Member or any other director, agent, or employee of the foregoing; (c) no act
or omission by any Member, unless acting within the scope of such Member's authority on behalf
of the Association, will void the policy or be a condition to recovery under the policy; and (d) if at
the time of a loss under the policy, there is other insurance in the name of a Member covering the
same risk covered by the policy, the Association's policy shall be the primary insurance. The
Association may adopt and establish written nondiscriminatory policies and procedures relating to
the submittal of claims, responsibility for deductibles, and any other matters of claims adjustment.
To the extent the Association settles claims for damages to real property, it shall have the authority
to assess negligent Owners causing such loss or benefitting from such repair or restoration for all
deductibles paid by the Association. Insurance obtained by the Association shall, to the extent
reasonably possible, and provided Declarant reimburses the Association for any additional premium
payable on account thereof, name Declarant as an additional insured and shall contain a waiver of
rights of subrogation as against Declarant. Insurance policies and insurance coverage shall be
reviewed at least annually by the Board of Directors to ascertain whether coverage under the policies
is sufficient in light of the current values of the Association Properties and in light of the possible
or potential liabilities of the Association. The aforementioned insurance may be provided under
blanket policies covering the Association Properties and property of Declarant.
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8.8 Maintenance of Fidelity Insurance. In the event the Board of Directors delegates its
powers with respect to collection, deposit, transfer, or disbursement of Association funds to other
persons or to a managing agent, as authorized by these Bylaws and the Colorado Common Interest
Ownership Act, then in connection with such delegation of powers, the Board of Directors shall
require:
8.8.1 That the other persons or managing agent maintain fidelity insurance coverage
or a bond in an amount not less than Twenty -Five Thousand Dollars ($25,000) or such higher
amount as the Board of Directors or Executive Committee may require;
8.8.2 That the other persons or managing agent maintain all funds in accounts of
the Association separate from the funds and accounts of other associations managed by the
other persons or managing agent and maintain all reserve accounts of each association so
managed separate from operational accounts of the Association; and
8.8.3 That an annual accounting for Association funds and a financial statement be
prepared and presented to the Association by the managing agent, a public accountant, or a
certified public accountant.
8.9 Other Insurance and Bonds. The Association shall obtain such other insurance as may
be required by law, including workmen's compensation insurance, and shall have the power to obtain
such other insurance and such fidelity, indemnity, or other bonds as the Association shall deem
necessary or desirable.
8.10 Insurance Proceeds. Any loss covered by the property insurance policy described in
Section 8.5 above must be adjusted with the Association, but the insurance proceeds for that loss
shall be payable to any insurance trustee designated for that purpose, or otherwise to the Association,
and not to any holder of a security interest. The insurance trustee or the Association shall hold any
insurance proceeds in trust for the Association, Owners and lien holders as their interest may appear.
Subject to the provisions of Section 38.33.3-313(9) of the Act, the proceeds must be disbursed first
for the repair or restoration of the damaged property, and the Association, Owners and lien holders
are not entitled to receive payments of any portion of the proceeds unless there is a surplus of
proceeds after the property has been completely restored or the Common Interest Community is
terminated.
8.11 Nonliability of Association or Board of Directors. Notwithstanding the duty of the
Association to obtain insurance coverage, as stated herein, neither the Association nor any Board of
Directors member, shall be liable to any Owner, Occupant, Mortgagee, or other Person, if any risks
or hazards are not covered by insurance, or if the appropriate insurance is not obtained because such
insurance is not reasonably obtainable on the Association's behalf, or if the amount of insurance is
not adequate, and it shall be the responsibility of each Owner and Occupant to ascertain the coverage
and protection afforded by the Association's insurance and to procure and pay for such additional
insurance coverage and protection as the Owner or Occupant may desire.
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8.12 Insurance Claims. The Association is hereby irrevocably appointed and authorized,
subject to the provisions contained herein, to adjust all claims arising under insurance policies
purchased by the Association and to execute and deliver releases upon the payments of claims, and
to do all other acts reasonably necessary to accomplish any of the foregoing. The Board of Directors
has full and complete power to act for the Association in this regard, and may, in its discretion,
appoint an authorized representative, or enter into an insurance trust agreement, wherein the trustee
shall have the authority to negotiate losses under any policy purchased by the Association.
8.13 Benefit. Except as otherwise provided herein, all insurance policies purchased by the
Association shall be for the benefit of, and any proceeds of insurance received by the Association
or any insurance trustee shall be held or disposed of, in trust, for the Association, the Owners, or the
Occupants as their interest may appear.
8.14 Other Insurance to be Carried by Owners or Occupants. Insurance coverage on the
improvements, furnishings and other items of personal property belonging to an Owner or Occupant,
and public liability insurance coverage upon each Lot shall be the responsibility of the Owner or
Occupant of the Lot.
The Board of Directors may require an Owner who purchases additional insurance coverage
for the Owner's Lot (other than coverage for the Owner's personal property) to file copies of such
policies with the Association within thirty (30) days after purchase of the coverage to eliminate
potential conflicts with any master policy carried by the Association.
8.15 Repair and Replacement. Any portion of the Common Interest Community for which
insurance is required under Section 38-33.3-313 of the Act that is damaged or destroyed must be
repaired or replaced promptly by the Association unless: (i) The Common Interest Community is
terminated; (ii) repair or replacement would be illegal under any state or legal statute or ordinance
governing health or safety; (iii) sixty-seven percent (67%) of the Owners, including Owners of every
Lot that will not be rebuilt, vote not to rebuild; or (iv) prior to the conveyance of any Lot to a person
other than Declarant, the Mortgagee holding a Mortgage on the damaged portion of the Common
Areas rightfully demands all or a substantial part of the insurance proceeds.
The cost of repair or replacement in excess of insurance proceeds in reserves is a Common
Expense. If the entire Common Interest Community is not repaired or replaced, the insurance
proceeds attributable to the damaged Lots or, Common Areas must be used to restore the damaged
property to a condition compatible with the remainder of the Common Interest Community, and,
except to the extent that other persons would be distributees, the insurance proceeds attributable to
Lots and Common Areas that are not rebuilt must be distributed to the Owners of those properties,
or to lien holders, as their interest may appear, and the remainder of the proceeds must be distributed
to all Owners or lien holders as their interest may appear in proportion to the Common Expense
liabilities of all Lots.
In the event of damage to or destruction of all or a portion of the Lots or Common Areas due
to fire or other adversity or disaster, the insurance proceeds if sufficient to reconstruct or repair the
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damage, shall be applied by the Association to such reconstruction and repair. If the insurance
proceeds with respect to such damage or destruction are insufficient to repair and reconstruct the
damage or destruction, the Association may levy a Special Assessment in the aggregate amount of
such deficiency, or if any Owner or group of Owners is liable for such damage, may levy a
Reimbursement Assessment against the Owner or group of Owners responsible therefore, and shall
proceed to make such repairs or reconstruction. Such Assessments shall be due and payable as
provided by resolution of the Board of Directors, but not sooner than sixty (60) days after written
notice thereof. The Assessment provided for herein shall be a debt of each Owner assessed in a lien
on his Lot, and may be enforced and collected in the same manner as any Assessment lien provided
for in this Declaration. If the entire damaged property is not repaired or replaced, the insurance
proceeds attributable to the damaged property must be used to restore the damaged property to a
condition compatible with the remainder of the Common Interest Community. No distributions of
insurance proceeds shall be made unless made jointly payable to the Owners and first Mortgagee of
their respective Lots, if any.
8.16 Cancellation. If the insurance described in Section 8.15 above is not reasonably
available, or if any policy of such insurance is cancelled or not renewed without a replacement policy
therefor having been obtained, the Association promptly shall cause notice of that fact to be hand
delivered or sent prepaid by United States mail to all Owners.
8.17 Duty to Prepare Budgets. The Association shall prepare Budgets for the Association
as elsewhere provided in this Declaration.
8.18 Duty to Levy and Collect Assessments. The Association shall levy and collect
Assessments as elsewhere provided in this Declaration.
8.19 Duty to Keep Association Records. The Association shall keep financial records
sufficiently detailed to enable the Association to comply with the Act, including, but not limited to,
financial records sufficiently detailed to provide a statement setting forth the amount of any unpaid
Assessments currently levied against an Owner.
8.20 Duties with Respect to Design Review Committee Approvals. The Association shall
perform functions to assist the Design Review Committee as elsewhere provided in this Declaration.
Additionally, the Association shall have the right to delegate the duties of the Design Review
Committee to a similar committee performing similar functions at other planned unit developments
within Garfield County, Colorado.
8.21 Power to Acquire Property and Construct Improvements. The Association may
acquire property or interests in property for the common benefit of Owners including improvements
and personal property. The Association may construct Improvements on property, including portions
of the Common Areas that are not otherwise subject to conservation or other types of restrictive
easements, and may demolish existing Improvements. Notwithstanding any provision contained in
this Declaration to the contrary, the Association may partition the interior area of any Improvement
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constructed on the Common Areas for individual Owner use, and may charge Owners for the use and
maintenance of such partitioned areas.
8.22 Power to Adopt Rules and Regulations. The Association may adopt, amend, repeal,
and enforce Rules and Regulations as may be deemed necessary or desirable with respect to the
interpretation and implementation of this Declaration, the operation of the Association, the use and
enjoyment of Association Properties, and the use of any other property within the Common Interest
Community, including Lots. Any such Rules and Regulations shall be effective only upon adoption
by resolution of the Board of Directors. Notice of the adoption, amendment, or repeal of any Rule
or Regulation shall be given in writing to each Member at the address for notices to Members as
elsewhere provided in this Declaration or the Bylaws, and copies of the currently effective Rules and
Regulations shall be made available to each Member upon request and payment of the reasonable
expense of copying the same. Each Member shall comply with such Rules and Regulations and shall
see that Persons claiming through such Member comply with such Rules and Regulations. Such
Rules and Regulations shall have the same force and effect as if they were set forth in and were part
of this Declaration. In the event of conflict between the Rules and Regulations and the provisions
of this Declaration, the provisions of this Declaration shall prevail.
8.23 Power to Enforce Declaration and Rules and Regulations. The Association shall have
the power to enforce the provisions of this Declaration and the Rules and Regulations and shall take
such action as the Board deems necessary or desirable to cause such compliance by each member
and each Person claiming by, through, or under such Member ("Related User"). Without limiting
the generality of the foregoing, the Association shall have the power to enforce the provisions of this
Declaration and the Rules and Regulations by any one or more of the following means: (a) by entry
upon any property within the Common Interest Community after Notice and Hearing (unless a bona
fide emergency exists), without liability to the Owner thereof or the Association, for the purpose of
enforcement or causing compliance with this Declaration or the Rules and Regulations; (b) by
commencing and maintaining actions and suits to restrain and enjoin any breach or threatened breach
of the provisions of this Declaration or the Rules and Regulations, by mandatory injunction or
otherwise; (c) by commencing and maintaining actions and suits to recover damages for breach of
any of the provisions of this Declaration or the Rules and Regulations; (d) by suspension, after
Notice and Hearing, of the voting rights of a Member during and for up to ten (10) days following
any breach by such Member or a Related User of such Member of this Declaration or the Rules and
Regulations, unless the breach is a continuing breach in which case such suspension shall continue
for so long as such breach continues; (e) by levying and collecting, after Notice and Hearing, a
Reimbursement Assessment against any Member for breach of this Declaration or the Rules and
Regulations by such Member or Related User of such Member; and (f) uniformly applied fines and
penalties, established in advance in the Rules and Regulations of the Association, from any Member
or Related User for breach of this Declaration or the Rules and Regulations by such Member or
Related User of such Member. In the event that the Association fails to enforce the provisions of
this Declaration as provided for herein, each Member shall, upon thirty (30) days written notice to
the Association, have the power (a) to enforce the provisions hereofby commencing and maintaining
actions and suits to retrain and enjoin any breach or threatened breach of the provisions of this
Declaration of Covenants Conditions and Restrictions for The Reserve at Elk Meadows PUD Page 46 of 63
Declaration, by mandatory injunction or otherwise; or (b) to commence or maintain actions and suits
to recover damages for breach of any of the provisions of this Declaration.
8.24 Power to Grant Easements. The Association shall have the power to grant access,
utility, drainage, water facility, and such other easements in, on, over, or under Association
Properties as it deems necessary or desirable for the benefit of the Common Interest Community.
The Association shall have the further power to designate portions of the Association Properties as
limited common elements for the benefit of specific Lot owners.
8.25 Power to Convey and Dedicate Property to Governmental Agencies. The Association,
with the approval of Members representing at least sixty-seven percent (67%) ofthe Owners entitled
to vote (exclusive of the Declarant), shall have the power to grant, convey, dedicate, or transfer any
Association Properties or facilities to any public, governmental or quasi -governmental agency or
authority for such purposes and subject to such terms and conditions as the Association shall deem
appropriate, subject to the provisions elsewhere contained in this Declaration for approval of the
same by Declarant with respect to property transferred to the Association by Declarant. Further, to
the extent that any easement or right-of-way is required under or across any Association Properties
which would not impair or hinder the use thereof, the Association shall have the right to grant or
convey the same without the consent of the Members.
8.26 Power to Borrow Money and Mortgage Property. The Association shall have the
power to borrow money and, with the approval of Members representing at least sixty-seven percent
(67%) of the Owners entitled to vote (exclusive of the Declarant), to encumber Association
Properties as security for such borrowing, subject to provisions elsewhere contained in this
Declaration with respect to required approvals and consents to such action. An Agreement to
convey, or subject the Association Properties to a security interest in accordance with this Section
and Section 8.23 above shall be evidenced by the execution of an agreement, or ratification thereof,
in the same manner as a deed, by the requisite number of Owners. The agreement shall specify a
date after which the agreement will be void unless Recorded before the date and shall be effective
upon Recordation. Notwithstanding the foregoing, the Association, to the extent permitted by law,
shall have the power to borrow money and to pledge existing and future receivables as security for
such borrowing without the approval of the Members.
8.27 Power to Engage Employees, Agents, and Consultants. The Association shall have
the power to hire and discharge employees and agents and to retain and pay for management, (e.g.,
management company), legal and accounting services as maybe necessary or desirable in connection
with the performance of any duties or the exercise of any powers of the Association under this
Declaration.
8.28 General Corporate Powers. The Association shall have all ofthe ordinarypowers and
rights of a Colorado corporation formed under the Colorado Nonprofit Corporation Act, including,
without limitation, entering into partnership and other agreements, subject only to such limitations
upon such powers as may be set forth in this Declaration or in the Articles of Incorporation or
Bylaws. The Association shall also have the power to do any and all lawful things which may be
Declaration of Covenants Conditions and Restrictions for The Reserve at Elk Meadows PUD Page 47 of 63
authorized, required, or permitted to be done under this Declaration or the Articles of Incorporation
or Bylaws and to do and perform any and all acts which may be necessary or desirable for, or
incidental to, the exercise of any of the express powers or rights of the Association under this
Declaration and the Articles of Incorporation or Bylaws.
8.29 Power to Provide Association Functions. The Association shall have the power to
acquire, construct, operate, manage, maintain, repair, and replace all necessary facilities and to
provide Association Functions as defined in this Declaration. The Association may enter into such
cooperative agreements and arrangements as it may deem necessary and appropriate with any
provider ofutilities or public services to Owners, including any special municipal or quasi -municipal
districts created for the purpose of providing such services.
8.30 Power to Provide Special Services to Members. The Association shall have the
power to provide services to a Member or group of Members. Any service or services to a Member
or group of Members shall be provided pursuant to an agreement in writing, or through one or more
Supplemental Declarations, which shall provide for payment to the Association by such Member or
group of Members of the reasonably estimated costs and expenses of the Association of providing
such services, including a fair share of the overhead expenses of the Association and shall contain
reasonable provisions assuring that the obligation to pay for such services shall be binding upon any
heirs, personal representatives, successors and assigns of the Member or group of Members and that
the payment for such services shall be secured by a lien on the property of the Member or group of
Members.
8.31 Power to Charge for Association Properties, Facilities and Services. The Association
shall have the power to establish reasonable and uniformly applied charges for the use of Association
Properties, facilities and services. The charges may include reasonable admission or other fees for
any special or extraordinary use of Association Properties.
8.32 Power to Employ Managers. The Association shall have the power to retain and pay
for the services of a manager or Managers, which maybe an affiliate of Declarant, to undertake any
of the management or Administrative Functions, or Association Functions for which the Association
has responsibility under this Declaration to the extent deemed advisable by the Association, and may
delegate any of its duties, powers, or functions to any such Manager. Any contract or agreement with
any such Manager shall be terminable by the Association for cause on no more than thirty (30) days
prior written notice, and shall be terminable by the Association without cause and without payment
of a termination fee on no more than ninety (90) days prior written notice. Any such contract or
agreement shall be for a term of no more than one (1) year and may be subject to renewal for
succeeding terms of no more than one (1) year each. Notwithstanding any delegation to a Manager
of any duties, powers, or functions of the Association, the Association and its Board of Directors
shall remain ultimately responsible for the performance and exercise of such duties, powers and
functions.
8.33 Association as Attorney -In -Fact. Each and every Owner hereby irrevocably
constitutes and appoints the Association as such Owner's true and lawful attorney-in-fact in such
Declaration of Covenants Conditions and Restrictions for The Reserve at Elk Meadows PUD Page 48 of 63
Owner's name, place, and stead for the purpose of dealing with the Common Interest Community
upon its damage, destruction, condemnation, or obsolescence as provided below. In addition, the
Association, or any insurance trustee or substitute insurance trustee designated by the Association,
is hereby appointed as attorney-in-fact under this Declaration for the purpose of purchasing and
maintaining insurance under this Article 8, including: the collection and appropriate disposition of
the proceeds of such insurance; the negotiation of losses and the execution of releases of liability;
the execution of all documents; and the performance of all other acts necessary to accomplish such
purpose. The Association, or any insurance trustee, shall hold or otherwise properly dispose of any
insurance proceeds in trust for the Owners and their Mortgagees, as their interest may appear.
Acceptance by any grantee of a deed or other instrument of conveyance from Declarant or from any
Owner shall constitute appointments of the attorneys -in -fact as provided above. Notwithstanding
any other provision of this Declaration to the contrary, the Association may exercise its authority as
attorney-in-fact for any purpose permitted pursuant to this Declaration only if, in each and every
instance where such exercise is so permitted, the Board of Directors approves the exercise of such
authority by the affirmative vote of a majority of the voting directors. If the Board of Directors fails
to so approve any exercise of authority as attorney-in-fact, the Association shall have such authority
as it may have pursuant to the Act. As attorney-in-fact, the Association shall have full and complete
authorization, right, and power, to make, execute, and deliver any contract, assignment, deed, waiver,
or other instrument with respect to the interest of any Owner which may be necessary or appropriate
to exercise the powers granted to the Association as attorney-in-fact.
8.34 Powers Provided by Law. In addition to the above -referenced powers, the
Association shall have full power to take and perform any and all actions which may be lawfully
taken by the Association under the Colorado Revised Nonprofit Corporation Act and the Colorado
Common Interest Ownership Act.
ARTICLE 9.
ASSESSMENTS, BUDGETS AND FUNDS
9.1 Maintenance Funds to be Established. The Association may (but shall not be required
to) establish and maintain the following separate Maintenance Funds: (a) an Administrative
Functions Operating Fund; and (b) an Administrative Functions Reserve Fund. The Maintenance
Funds shall be established as one or more trust savings or trust checking accounts at any financial
institution in which deposits are insured by an agency of the federal government. Notwithstanding
anything else to the contrary contained herein, in no event shall the Association be required to apply
any surplus funds of the Association remaining after payment of or provision for common expenses,
or any prepayment of or provision for reserves, against any Members' future Common Assessment
or return such surplus funds to the Members.
9.2 Establishment of Other Funds. The Association may establish other funds as and
when needed. Nothing herein shall limit, preclude, or impair the authority of the Association to
establish other funds for specified purposes authorized by this Declaration. If the Association
establishes any additional funds, the Board shall designate an appropriate title for the fund to
distinguish it from other funds maintained by the Association.
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9.3 Deposit of Common Assessments to Maintenance Funds. If the Association
establishes separate Maintenance Funds, monies received by the Association from Common
Assessments shall be deposited in the Maintenance Funds in accordance with the following
provisions: (a) there shall be deposited to the Administrative Functions Operating Fund that portion
of the Common Assessments which, according to the Association Budget for the year, was budgeted
for operating costs and expenses of the Administrative and Association Functions; and (b) there shall
be deposited to the Administrative Functions Reserve Fund that portion of the Common Assessments
which were budgeted for the Reserve Fund for Administrative and Association Functions.
9.4 Other Deposits to Maintenance Funds. If the Association establishes separate
Maintenance Funds, the Association shall deposit monies received by the Association from sources
other than Common Assessments in the Maintenance Fund determined by the Board of Directors to
be most appropriate. For example, the Reimbursement Assessments shall be deposited to the
Maintenance Fund from which the costs and expenses were or will be paid which form the basis for
the Reimbursement Assessments; and Special Assessments for capital repairs, maintenance,
replacements, and Improvements shall be deposited to the Reserve Fund from which such capital
costs have been or will be paid. Interest and late charges received on account of delinquent
assessments may be allocated among the Maintenance Funds in the same proportions as the
delinquent assessments were allocated or, at the discretion of the Board of Directors, may be
allocated to any one or more of the Maintenance Funds or other funds.
9.5 Disbursements from Maintenance Funds. All amounts deposited in the Maintenance
Funds shall be used solely for the common benefit of all the Members for purposes authorized by
this Declaration. Disbursements from particular Maintenance Funds shall be limited to specified
purposes as follows: (a) disbursements from the Administrative Functions Operating Fund maybe
made for such purposes as are necessary or proper under this Declaration, except those purposes for
which disbursements are to be made from other Maintenance Funds; and (b) disbursements from the
Administrative Functions Reserve Fund shall be made solely for purposes of funding those
administrative Functions which cannot be expected to recur on an annual or more frequent basis.
9.6 Authority for Disbursements. The Board shall have the authority to make or to
authorize an agent to make disbursements of any monies in the Maintenance Fund.
9.7 Assessment Obligation. Declarant, for each Lot in the Common Interest Community,
shall be deemed to covenant and agree, and each Owner, by acceptance of a deed therefor (including
a public trustee's or sheriff's deed), whether or not it shall be so expressed in any such deed or other
instrument of conveyance, shall be deemed to covenant and agree, to pay to the Association: (1)
Common Assessments or charges, (2) Special Assessments, (3) Reimbursement Assessments, (4)
Water Assessments, (5) Sewer Assessments, and (6) Irrigation Assessments, such assessments to be
established and collected as hereinafter provided (collectively the "Assessments"). The
Assessments, together with interest, late charges, costs, and reasonable attorneys fees, shall be a
continuing lien and security interest upon the Lot against which each such Assessment is charged.
The obligation for such payments by each Owner to the Association is an independent covenant, and
Declaration of Covenants Conditions and Restrictions for The Reserve at Elk Meadows PUD Page 50 of 63
with all amounts due from time to time payable in full without notice (except as otherwise expressly
provided in this Declaration) or demand, and without set-off or deduction of any kind or nature.
Each Owner is liable for assessments made against such Owner's Lot during his period of ownership
of the Lot. Each Assessment, together with interest, late charges, costs and reasonable attorneys fees,
shall also be the joint, several and personal obligation of each Person who was an Owner of such Lot
at the time when the Assessment became due. Upon the transfer of title to a Lot, the transferor and
the transferee shall be jointly, severally and personally liable for all unpaid Assessments and other
charges due to the Association prior to the date of transfer, and the transferee shall be personally
liable for all such Assessments and charges becoming due thereafter.
9.8 Common Assessments. For each calendar year, the Association may levy Common
Assessments against Owners of the Lots based upon an annual Budget prepared by the Board of
Directors, for purposes of paying (i) the annual costs of operating and administering the Association
and all other Common Expenses, (ii) the cost of services "rendered or expenditures incurred by the
Association to or for less than all Lots, which shall be assessed only to the Lots benefitted and then
in accordance with the formula set forth in Section 2.3, (iii) reasonable reserves for contingencies,
replacements, and other proper purposes, and (iv) such other matters as may be reasonably
determined by the Board of Directors to be the subject of a Common Assessment. Each Owner shall
be obligated to pay the Common Assessments levied against and allocated to such Owner and the
Lot of such Owner, as hereinafter provided.
9.9 Apportionment of Common Assessments. Each Lot's share of the Common
Assessments shall be calculated in accordance with the formula set forth in Section 2.3 of this
Declaration. If Lots have been combined pursuant to Section 3.23 hereof, each Lot so combined
shall be counted separately in determining the amount of such Common Assessment and shall be
assessed separately.
9.10 Funding of Reserve Funds. The Board, in budgeting and levying assessments, shall
endeavor, whenever possible, to fund the Administrative Functions Reserve Fund by regularly
scheduled payments, included as part of the Common Assessments, rather than by large Special
Assessments. Amounts in the Administrative Functions Reserve Fund maybe used in the discretion
of the Board of Directors, from time to time, for any purpose for which a Common or Special
Assessment may be used.
9.11 Supplemental Common Assessments. Subject to the provision of Section 9.14 hereof,
if the estimated sums prove inadequate for any reason, including nonpayment of any Owner's
Common Assessment, the Board may, from time to time, levy a Supplemental Common Assessment
for any of the Maintenance Funds. Such Supplemental Common Assessment shall be assessed
against the Owner of each lot, in the same manner Common Assessments are originally assessed
each year by the Board with respect to the particular Maintenance Fund. Written notice of any
change in the amount of any annual Common Assessment shall be sent to every Owner subject
thereto, not less than thirty (30) days prior to the effective date of such change.
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9.12 Annual Budgets. The Board of Directors shall cause to be prepared, at least sixty (60)
days prior to the commencement of each calendar year, a Budget for such calendar year, including
a reasonable provision for contingencies and deposits into the Administrative Functions and Reserve
Funds. The Budget shall show, in reasonable detail, the categories of expenses and the amount of
expenses in each Maintenance Fund, and shall reflect any expected income of the Association for
the coming calendar year and any expected surplus from the prior year and any existing surplus in
any Reserve Fund. The budget may include an amount for contingencies and amounts deemed
necessary or desirable for deposits to create, replenish, or add to the proper Reserve Fund for major
capital repairs, replacements, and improvements for Association Properties. The Budget shall
include a line item or category reflecting all annual expenses associated with the Conservation
Easement. Within thirty (30) days after the adoption of any Budget; the Board shall cause a copy
of the Budget to be distributed to each Member and shall set a date for a meeting of the Owners to
consider ratification of the Budget not less than fourteen (14) nor more than sixty (60) days after
mailing or other delivery of the summary. Such meeting may be concurrent with the annual meeting
of members as provided in the Bylaws. Unless at that meeting, a majority of all Owners vote to
reject the Budget, the Budget shall be deemed ratified, whether or not a quorum is present. In the
event the budget is rejected, the periodic Budget last ratified by the Owners must be continued until
such time as the Owners ratify a subsequent Budget proposed by the Board. At such time as the
Association publishes a newsletter for Members, the Budget shall be published in such newsletter.
Copies of the Budget shall be made available by the Association to any Members requesting a copy
of the same upon payment of the reasonable expense of copying the same.
9.13 Commencement of Common Assessments/Common Interest Communities. Common
Assessments shall commence and be due and payable as to each Lot within the Common Interest
Community six (6) months following the date of Recordation of the first Deed conveying a Lot
within the Common Interest Community. The initial Common Assessments for the first calendar
year that Common Assessments are levied shall be prorated on the basis of the number of days in
such calendar year remaining from the date of commencement of such Common Assessments to the
end of such calendar year.
9.14 Payment of Assessment. Except for the initial Assessment, Common Assessments
shall be due and payable in advance to the Association by the assessed Member on or before the first
day of the second month of each calendar year, or in such other manner and on such other dates as
the Board of Directors may designate in its sole and absolute discretion. Notice of the amount of the
Common Assessments shall be given to each Member prior to January 1 of each year.
9.15 Failure to Fix Assessment. The failure by the Board of Directors to levy an
Assessment for any year shall not be deemed a waiver or modification with respect to any of the
provisions of this Declaration or a release of the liability of any Member to pay Assessments, or any
installment thereof, for that or any subsequent year. No abatement of the Common Assessment or
any other Assessment shall be claimed or allowed for inconvenience or discomfort arising from the
making of repairs or Improvements to Association Properties or from any action taken to comply
with any law or any determination of the Board of Directors or for any other reason.
Declaration of Covenants Conditions and Restrictions for The Reserve at Elk Meadows PUD Page 52 of 63
9.16 Special Assessments. In addition to Common Assessments, the Board of Directors
may, subject to the provisions of this Section, levy Special Assessments for the purpose of raising
funds not otherwise provided under the budget from Common Assessments to construct or
reconstruct, repair, or replace capital Improvements upon Association Properties, including necessary
personal property related thereto; to add to the Association Properties; to provide for necessary
facilities and equipment to offer the services authorized in this Declaration; or to repay any loan
made to the Association to enable it to perform the duties and functions authorized in this
Declaration. The Board of Directors shall not levy Special Assessments without the vote of the
Members representing at least a majority of the Owners of Lots subject to the Special Assessment
who are entitled to vote. The Association shall notify Members in writing of the amount of any
Special Assessment and of the manner in which, and the date on which, any such Special Assessment
is payable and the Members shall pay any such Special Assessment in the manner so specified. Each
Owner's Special Assessment liability shall be calculated in accordance with the formula set forth
in Section 2.3.
9.17 Reimbursement Assessments. The Board of Directors may, subject to the provisions
hereof, levy an Assessment against any member if the willful or negligent failure of the Member, or
a Person claiming through the Member, to comply with this Declaration, the Articles of
Incorporation, the bylaws, or the Rules and Regulations, shall have resulted in the expenditure of
funds by the Association to cause such compliance, including, but not limited to, court costs and
attorneys' fees. Such Assessment shall be known as a Reimbursement Assessment and shall be
levied only after Notice and Hearing. The amount of the Reimbursement Assessment shall be due
and payable to the Association thirty (30) days after notice to the Member of the decision of the
Board of Directors that the Reimbursement Assessment is owing. A Reimbursement Assessment
may also be levied against a Member for the purpose of collecting fines or damages imposed against
such Member as a result of such Member's violation of any provision of the Conservation Easement.
9.18 Water Assessments. The Association shall assess Water Assessments against each
Owner and any other water user for the amount of water delivered to the respective Lots or other
structures as recorded by the individual water meters pursuant to the rates and regulations adopted
by the Association, as further described in the Association bylaws, and shall assess each Owner an
equal share of any administrative and other costs charged to the Association.
9.19 Irrigation Assessments. The Association shall levy Irrigation Assessments against
the Owners of the Lots utilizing the Irrigation System to compensate the Association for the use of
such water. The Board of Directors shall determine the service charges and rate structure for use of
the Irrigation System water and may utilize the Irrigation Assessments to offset a portion of the
expenses associated with the Irrigation System that are otherwise assessed to the Members as
Common Assessments.
9.20 Sewer Assessments. [Define and authorize if applicable
9.21 Declarant's Obligation to Pay Assessments. Declarant shall be obligated to pay the
Assessments (including installments thereof) on each Lot owned by it.
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9.22 Late Charges and Interest. If any Assessment authorized by this Declaration, or any
installment thereof, is not paid when due, the Member obligated to pay the Assessment may be
required to pay a reasonable late charge to be determined by the Board. Any Assessment or
installment of an Assessment which is not paid when due shall bear interest from the date said
Assessment was due at the highest rate then established by statute in Colorado for interest on
damages for personal injury or on judgments in other actions, whichever is higher, but in no event
less than eighteen percent (18%) per annum simple interest.
9.23 Attribution of Payments. If any installment of a Common Assessment payment is less
than the amount assessed and the payment does not specify the Maintenance Fund or Funds into
which it should be deposited, the receipt by the Association from that Owner shall be credited in the
following order of priority: (a) to the Administrative Functions Reserve Fund until that portion of
the Common Assessment has been satisfied; and (b) to the Administrative Functions Operating
Fund. In each of the foregoing cases, receipts shall be credited first to interest, attorneys' fees and
other costs of collection, and next to principal reduction, satisfying the oldest obligations first,
followed by more current obligations, in accordance with the foregoing order of priority.
9.24 Notice of Default. Except as otherwise provided herein, if any Assessment authorized
by this Declaration, or any installment thereof is not paid within ten (10) days after its due date, the
Board of Directors may, but shall not be obligated to, mail a notice of default ("Notice of Default")
to the Owner and to each first Mortgagee of the Lot who has requested a copy of the notice. The
notice shall specify (a) the fact that the installment is delinquent; (b) the action required to cure the
default; (c) a date, not less than thirty (30) days from the date the notice is mailed to the Member,
by which such default must be cured; and (d) that failure to cure the default on or before the date
specified in the notice may result in (i) acceleration of the balance of the Assessment or the
installments of the Assessment for the then current calendar year, if applicable, and (ii) the filing and
foreclosure of the lien for the Assessment against the Lot of the Member. The notice shall further
inform the Member of any right to cure the default and of any right to bring a court action to assert
the nonexistence of a default or any other defense of the Member. If the delinquent Assessment and
any late charges or interest thereon are not paid in full on or before the date specified in the notice,
the Board, at its option, may declare all of the unpaid balance of the Assessment to be immediately
due and payable without further demand, if applicable, and may enforce the collection of the
Assessment and all charges and interest thereon in any manner authorized by law in this Declaration,
subject to the protection afforded to Mortgagees under this Declaration.
9.25 Remedies to Enforce Assessments. Each Assessment levied hereunder shall be a
separate, distinct, and personal debt and obligation of the Owner or Member against whom the same
is assessed. In the event of a default in payment of any Assessment authorized by this Declaration
or installment thereof, the Board may, in addition to any other remedies provided under this
Declaration or by law, enforce such obligation on behalf of the Association, by suit or by filing and
foreclosure of a lien as hereinafter provided.
Declaration of Covenants Conditions and Restrictions for The Reserve at Elk Meadows PUD Page 54 of 63
9.26 Lawsuit to Enforce Assessments. The Board may bring a suit at law to enforce any
Assessment obligation. Any judgment rendered in such action shall include any late charges,
interest, and other costs of enforcement, including reasonable attorneys' fees in the amount as the
court may adjudge, against the defaulting Owner or Member.
9.27 Successor's Liability for Assessments. Notwithstanding the personal obligation of
each Owner of a Lot to pay all Assessments on the Lot, and not withstanding the Association's
perpetual lien upon a Lot for such Assessments, all successors in interest to the fee simple title of
a Lot, except for any First Mortgagee who acquires title in accordance with Section 11.8 hereof, shall
be jointly and severally liable with the prior Owner of the Lot for any and all unpaid Assessments,
interest, late charges, costs, expenses, and attorneys fees against such Lot, without prejudice to any
such successor's right to recover from any prior Owner any amounts paid thereon by such successor.
However, such successor in interest shall be entitled to rely upon the existence and status of unpaid
Assessments, interest, late charges, costs, expenses, and attorneys fees as shown upon any certificate
issued by or on behalf of the Association to such named successor in interest pursuant to the
provisions of Section 9.29 below.
9.28 Lien to Enforce Assessments. Pursuant to and in accordance with the Act, the
Association shall have a statutory lien on a Lot for any Assessment levied against that Lot, or fines
imposed against its Owner, from the time the Assessment or fine becomes due. All fees, charges,
late charges, attorneys' fees, fines and interest outstanding from such Owner shall be included in such
lien. The amount of the lien shall include all such items from the time such items become due. If
an Assessment is payable in installments, the Association has an Assessment lien for each
installment from the time it becomes due, including the due date set by the Board of Directors'
acceleration of installment obligations. The lien created hereby and under the Act shall be prior to
any declaration of homestead rights recorded after the time that the Lot becomes a part of the
Common Interest Community and shall have the priority attached to such lien under the Act and
under Colorado law. The Recording of this Declaration constitutes record notice and perfection of
the statutory lien. No further recordation of any claim of lien for Assessments is required; however,
a claim may be recorded at the Association's option, in which event costs and attorneys' fees
incurred in connection with the preparation and filing of such claim shall be assessed against the Lot
as a Reimbursement Assessment. The lien shall continue until the amounts secured thereby and all
subsequently accruing amounts are fully paid or otherwise satisfied. Unless paid or otherwise
satisfied, the lien may be foreclosed in the manner for foreclosure of mortgages in the State of
Colorado or in any other manner provided under Colorado law. An Assessment lien is extinguished
unless proceedings to enforce the lien are instituted within six (6) years after the full amount of
Assessments becomes due.
9.29 Estoppel Certificates. Upon the written request of any Member and any Person with,
or intending to acquire, any right, title, or interest in the Lot of such Member, the Association shall
furnish a written statement setting forth the amount of any Assessments or other amounts, if any, due
and accrued and then unpaid with respect to a Lot and the Owner thereof, and setting forth the
amount of any Assessment levied against such Lot which is not yet due and payable. Such statement
shall, with respect to the Person to whom it is issued, be conclusive against the Association and all
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Persons for all purposes, that no greater or other amounts were then due or accrued and unpaid and
that no other Assessments have been levied. The Association shall have the right from time to time
to establish a reasonable administrative charge for the issuance of such statements. Unless a written
certificate of status of Assessments is delivered as described above within a fourteen (14) business
day period, the Association shall have no right to assert a priority lien upon the Lot over the inquiring
party's interest for unpaid Assessments which were due as of the date of the written request.
9.30 Assessments for Tort Liability. In the event of any tort liability against the
Association which is not covered completely by insurance, each Owner shall contribute for the
payment of such liability as a Special Assessment. The Association may, however, require a larger
contribution from fewer than all Owners under any legal or equitable principles regarding liability
for negligent or willful acts or omissions.
9.31 No Offsets. All Assessments shall be payable in the amounts specified in the levy
thereof, and no offsets or reduction thereof shall be permitted for any reason including, without
limitation, any claim that the Association or the Board of Directors is not properly exercising its
duties and powers under this Declaration.
9.32 Liens. Except for Assessment liens as provided in this Declaration, mechanics liens,
tax liens, and judgment liens and other liens validly arising by operation of law and liens arising
under Mortgages, there shall be no other liens obtainable against the Common Areas or against the
interest of any Lot in the Common Areas.
ARTICLE 10.
SPECIAL PROVISIONS
10.1 Air Quality Restrictions. In order to protect against the degradation which occurs to
air quality as a result of the utilization of wood -burning devices, the following restrictions are
imposed:
10.1.1 No open hearth solid fuel fireplaces will be allowed anywhere within any new
dwelling units located within the Common Interest Community.
10.1.2 All dwelling units within the Common Interest Community will be allowed
an unrestricted number of natural gas burning fireplaces or appliances.
10.1.3 All dwelling units within the Common Interest Community will be allowed
one (1) new wood -burning stove as defined by C.R.. 25-7-401 et. seq. and all the regulations
promulgated thereunder.
10.1.4 The foregoing air quality instructions shall be included as plat notes on all
Final Plats of the Property.
Declaration of Covenants Conditions and Restrictions for The Reserve at Elk Meadows PUD Page 56 of 63
10.2 Duration and Enforceability. The restrictions set forth in this Article 10 shall
constitute covenants running with the Common Interest Community and shall be binding upon
Declarant and the Owners and all other persons and parties claiming through the Declarant or
Owners and shall be for the benefit of and limitations upon all future Owners of the Property.
Notwithstanding any other provision of this Declaration, all use restrictions set forth in this Article
10 may be set forth in individual deeds to Lots and shall be enforceable in perpetuity and shall not
be amended or terminated by action of the Owners or Declarant nor by any provision for termination
of this Declaration. The restrictions of these special environmental use restrictions shall be
enforceable in any and all manners provided in this Declaration by any Owners, by Declarant, or by
any County, State or Federal agency charged with preservation of the affected areas. Any such
enforcement action shall entitle the enforcing party to recovery of damages equal to the cost of
restoration of the Property, but not less than One Thousand Dollars ($1,000) and such enforcing
party shall be entitled to an award of its reasonable attorney fees and costs of enforcement, including
but not limited to, court costs, expert witness fees, and cost of depositions and exhibits.
ARTICLE 11.
MISCELLANEOUS
11.1 Tenn of Declaration. Unless amended as herein provided, and except for those
provisions set forth in Article 10 hereof, each • rovision contained in this Declaration shall continue
and remain in full force and effect until 'ra., and thereafter shall be automatically
extended for successive periods of ten (10) years each unless terminated by the affirmative vote, and
written ballot, of Members holding at least seventy-five percent (75%) of the membership of the
Association. In the event this Declaration is terminated, the termination of this Declaration shall be
evidenced by a termination agreement ("Termination Agreement"), or ratification thereof, executed
by the requisite number of Owners. The Termination Agreement shall specify a date after which the
Termination Agreement will be void unless Recorded before such date. The Termination Agreement
shall be Recorded and the termination of this Declaration shall be effective upon such Recording.
11.2 Declarant's Rights Regarding Transfer. Any right or interest reserved or contained
in this Declaration for the benefit of Declarant may be transferred or assigned by Declarant, either
separately or with one or more other such rights or interest, to any person, corporation, partnership,
association, or other entity by written instrument executed by both Declarant and the transferee or
assignee and recorded in the Office of the Clerk and Recorder of Garfield County, Colorado.
11.3 Amendment of Declaration by Declarant. Until the first Lot subject to this
Declaration has been conveyed by Declarant by a Recorded deed, any of the provisions, covenants,
conditions, restrictions, and equitable servitudes contained in this Declaration may be amended or
terminated by Declarant by the Recordation of a written instrument, executed by Declarant, setting
forth such amendment or termination; subject, however, to the special restrictions set forth in Article
10 hereof. After the conveyance of the first Lot, the Declarant may not amend the provisions,
covenants, conditions, restrictions and equitable servitudes contained in this Declaration without the
consent of the Members as provided in Section 11.4 unless such amendment is made in accordance
with the Act.
Declaration of Covenants Conditions and Restrictions for The Reserve at Elk Meadows PUD Page 57 of 63
11.4 Amendment of Declaration by Members. Except as otherwise provided in this
Declaration, including Section 6.1, and subject to provisions elsewhere contained in this Declaration
requiring the consent of Declarant or others, any provision, covenant, condition, restriction, or
equitable servitude contained in this Declaration may be amended or repealed at any time and from
time to time upon approval of the amendment or repeal by Members of the Association holding at
least fifty-one percent (51%) of the Members; subject, however, to the special restrictions set forth
in Article 10 hereof. The approval of any such amendment or repeal shall be evidenced by the
certification by the Members to the Board of Directors of the Association of the votes of Members.
The amendment or repeal shall be effective upon the Recordation of a certificate, executed by the
President or a Vice President and the Secretary or an Assistant Secretary of the Association setting
forth the amendment or repeal in full and certifying that the amendment or repeal has been approved
by the Members. Any Amendment to the Declaration made hereunder shall be effective only when
Recorded. All amendments hereto shall be indexed in the grantee's index in the name of Declarant
and the Association and in the Grantor's index in the name of each Person executing the amendment.
11.5 Amendment of Articles and Bylaws. The Articles of Incorporation and Bylaws may
be amended in accordance with the provisions set forth in such instruments or, in the absence of such
provisions, in accordance with applicable provisions of the Colorado Nonprofit Corporation Act.
11.6 Alternative Dispute Resolution. Except as may otherwise be provided herein and
alter exercising all rights and remedies provided hereunder or under the Bylaws, any claim,
controversy, or dispute over any Assessment authorized by this Declaration, or any decision of the
Design Review Committee, or any other matters as the Association and the affected party may agree,
shall be resolved by binding arbitration in accordance with the Colorado Arbitration Act. The parties
to such dispute shall agree upon a single arbitrator who shall be an experienced operator or manager
of a Planned Community. In the event the parties are unable to agree upon an arbitrator within sixty
(60) days after written notice, the presiding Judge of the District Court of the County shall appoint
an arbitrator qualified as set forth herein upon application by a party. Judgment upon the
determination of the arbitrator shall be entered by the District Court for the County. Any and all
discovery conducted in conjunction with such arbitration shall be in accordance with the limited
discovery provisions of the Colorado Rules of Civil Procedure.
11.7 Special Rights of First Mortgagees. Any First Mortgagee (meaning a Mortgage with
first priority over other Mortgages) of a Mortgage encumbering any Lot in the Common Interest
Community, upon filing a written request therefor with the Association, shall be entitled to (a)
written notice from the Association of any default by the Mortgagor of such Lot in the performance
of the Mortgagor's obligations under this Declaration, the Articles of Incorporation, the Bylaws, or
the Rules and Regulations, which default is not cured within sixty (60) days after the Association
learns of such default; (b) examine the books and records of the Association during normal business
hours; (c) receive a copy of financial statements of the Association including any annual financial
statement within ninety (90) days following the end of any fiscal year of the Association; (d) receive
written notice of all meetings of Members; (e) designate a representative to attend any meeting of
Members; (f) receive thirty (30) days' written notice prior to the effective date of any proposed
Declaration of Covenants Conditions and Restrictions for The Reserve at Elk Meadows PUD Page 58 of 63
material amendment to this Declaration, the Articles of Incorporation, or the Bylaws; and (g) receive
immediate written notice as soon as the Association receives notice or otherwise learns of any
damage to the Association Properties if the cost of reconstruction exceeds Ten Thousand Dollars
($10,000) and as soon as the Association receives notice or otherwise learns of any condemnation
or eminent domain proceedings or other proposed acquisition with respect to any portion of the
Association Properties.
11.8 Priority of First Mortgage Over Assessments. Except as may otherwise be provided
by the Act, each First Mortgagee of a Mortgage encumbering a Lot who obtains title to such Lot
pursuant to the remedies provided in the Mortgage, by judicial foreclosure, or by deed or assignment
in lieu of foreclosure shall take title to the Lot free and clear of any claims for unpaid Assessments
or charges against such Lot which accrued prior to the time such holder acquires title to such Lot.
Nothing herein relieves such First Mortgagee from responsibility for subsequent Assessments or
charges against such Lot after such time the holder acquires title to such Lot.
11.9 First Mortgage Right to Pay Taxes and Insurance Premiums. Any such First
Mortgagee or any such First Mortgagees, jointly or singly, shall be entitled to pay any taxes or other
charges which are in default and which may or have become a charge against any of the Association
Properties and may pay any overdue premiums on hazard insurance policies for any Association
Properties, and the First Mortgagees making such payments shall be entitled to immediate
reimbursement therefor from the Association.
11.10 Association Ri ght to Mortgage Information. Each Owner hereby authorizes any First
Mortgagee holding a Mortgage on such Owner's Lot to furnish information to the Association
concerning the status of such First Mortgage and the loan which it secures.
11.11 Notices. Any notice permitted or required to be given under this Declaration shall
be in writing and may be given either personally or by mail, telephone, or telegraph. If served by
mail, each notice shall be sent postage prepaid, addressed to any Person at the address given by such
Person to the Association for the purpose of service of such notice, or to the Lot of such Person if
no address has been given to the Association and shall be deemed given, if not actually received
earlier, at 5:00 p.m. on the second business day after it is deposited in a regular depository of the
United States Postal Service. Such address may be changed from time to time by notice in writing
to the Association.
11.12 Persons Entitled to Enforce Declaration. The Association, acting by authority of the
Board, and any Member of the Association entitled to vote (as more fully provided herein) shall have
the right to enforce any or all of the provisions, covenants, conditions, restrictions, and equitable
servitudes contained in this Declaration against any property within the Common Interest
Community and the Owner thereof. Notwithstanding the foregoing, prior to the enforcement of the
terms and provisions of this Declaration by any Member, such Member shall provide the Association
with 30 days prior written notice of such member's intention to do so. Such notice will state such
Member's claim for enforcement under the Declaration. In the event the Association fails to initiate
action on such Member's claim for enforcement within 30 days of the Association's receipt of such
Declaration of Covenants Conditions and Restrictions for The Reserve at Elk Meadows PUD Page 59 of 63
notice, such Member shall be entitled to proceed with the enforcement within 30 days of the
Association's receipt of such notice, such Member shall be entitled to proceed with the enforcement
of such claim individually. The rights of enforcement provided herein shall include the right to levy
fines and/or penalties as the Board may reasonably determine and/or bring an action for damages as
well as an action to enjoin any violation of any provision of this Declaration.
11.13 Violations Constitute a Nuisance. Any violation of any provision, covenant,
condition, restriction, and equitable servitude contained in this Declaration, whether by act or
omission, is hereby declared to be a nuisance and may be enjoined or abated, whether or not the
relief sought is for negative or affirmative action, by any Person entitled to enforce the provisions
of this Declaration.
11.14 Enforcement of Self -Help. Declarant or the Association, or any authorized agent of
either of them, may enforce, by self-help, any of the provisions, covenants, conditions, restrictions
and equitable servitudes contained in this Declaration, provided such self-help is preceded byNotice
and Hearing as set forth in the Bylaws.
11.15 Violations of Law. Any violation of any federal, state, municipal, or local law,
ordinance, rule or regulation, pertaining to the ownership, occupation, or use of any property within
the Common Interest Community is hereby declared to be a violation of this Declaration and shall
be subject to any and all enforcement procedures set forth in this Declaration.
11.16 Remedies Cumulative. Each remedy provided under this Declaration is cumulative
and not exclusive.
11.17 Costs and Attorneys' Fees. In any action or proceeding under this Declaration, the
prevailing party shall be entitled to recover its costs and expenses in connection therewith including
reasonable attorneys' fees.
11.18 Limitation on Liability. The Association, the Board of Directors, the Design Review
Committee, Declarant, and any Member, agent, or employee of any of the same shall not be liable
to any Person for any action or for any failure to act if the action or failure to act was in good faith
and without malice.
11.19 No Representations or Warranties. No representations or warranties of any kind,
express or implied, shall be deemed to have been given or made by Declarant or its agents or
employees in connection with any portion of the Common Interest Community, or any Improvement
thereon, its or their physical condition, zoning, compliance with applicable laws, fitness for intended
use, or in connection with the subdivision, sale, operation, maintenance, cost of maintenance, taxes
or regulation thereof, unless and except as shall be specifically set forth in writing herein, in any
purchase agreement executed by Declarant, or in any closing document related thereto.
11.20 Liberal interpretation. The provisions of this Declaration shall be liberally construed
as a whole to effectuate the purpose of this Declaration.
Declaration of Covenants Conditions and Restrictions for The Reserve at Elk Meadows PUD Page 60 of 63
11.21 Governing Law. This Declaration shall be construed and governed under the laws
of the State of Colorado.
11.22 Conflict of Provisions.
a. In the event of any conflict or inconsistency between the provisions of this
Declaration and the Plat, the provisions of the Plat shall govern and control and the
Declaration shall automatically be amended, but only to the extent necessary to
conform the conflicting provisions hereof with the provisions of the Plat.
b. In the event of any conflict or inconsistency between this Declaration and the Articles
and Bylaws of the Association, this Declaration shall control. In the event of any
conflict or inconsistency between the Articles and the Bylaws of the Association, the
Articles shall control.
11.23 Colorado Common Interest Ownership Act. In the event that any of the terms and
conditions of this Declaration are in conflict or inconsistent with the terms and conditions of the
Colorado Common Interest Ownership Act, the terms and conditions of the Act shall control. All
terms and provisions contained herein, to the extent possible, shall be construed in accordance with
the terms and provisions of the Act.
11.24 Nonwaiver. Failure by Declarant, the Association or any Owner or First Mortgagee
to enforce any covenant, condition, restriction, easement, reservation, right-of-way, or other
provision contained in this Declaration shall in no way or event be deemed to be a waiver of the right
to do so thereafter.
11.25 Severability. Each of the provisions of this Declaration shall be deemed independent
and severable, and the invalidity or unenforceability or partial validity or partial enforceability of the
provisions or portion thereof shall not affect the validity or enforceability of any other provision
11.26 Number and Gender. Unless the context requires a contrary construction, the singular
shall include the plural and the plural the singular, and the masculine, feminine, or neuter genders
shall each include the masculine, feminine, and neuter genders.
11.27 Captions for Convenience. The titles, headings, and captions used in this Declaration
are intended solely for convenience of reference and shall not be considered in construing any of the
provisions of this Declaration.
11.28 Exhibits. All the Exhibits attached to and described in this Declaration are
incorporated in this Declaration by this reference.
11.29 Mergers or Consolidations. Upon a merger or consolidation of the Association with
another association, its properties, rights, and obligations may, by operation of law, be transferred
Declaration of Covenants Conditions and Restrictions for The Reserve at Elk Meadows PUD Page 61 of 63
to another surviving or consolidated association or, alternatively, the properties, rights, and
obligations of another association may, by operation of law, be added to the properties, rights and
obligations of the Association as a surviving corporation pursuant to a merger. The surviving
consolidated association may administer and enforce the covenants, conditions and restrictions
established by this Declaration governing the Property, together with the covenants and restrictions
established upon any other property, as one plan.
11.30 Disclaimer RegardingSafJ. DECLARANT AND THE ASSOCIATION HEREBY
DISCLAIM ANY OBLIGATION REGARDING THE SECURITY OF ANY PERSONS OR
PROPERTY WITHIN THE COMMON INTEREST COMMUNITY. ANY OWNER OF
PROPERTY WITHIN THE COMMON INTEREST COMMUNITY ACKNOWLEDGES THAT
DECLARANT AND THE ASSOCIATION ARE ONLY OBLIGATED TO DO THOSE ACTS
SPECIFICALLY ENUMERATED HEREIN, OR IN THE ARTICLES OF INCORPORATION
AND BYLAWS, AND IS NOT OBLIGATED TO DO ANY OTHER ACTS WITH RESPECT TO
THE SAFETY OR PROTECTION OF PERSONS OR PROPERTY WITHIN THE COMMON
INTEREST COMMUNITY.
IN WITNESS WHEREOF, Declarant has executed this Declaration the day and year first
above written.
RESERVE AT ELK MEADOW, LLC
an Illionois limited liability company authorized to do
business in colorado
By: Westminster Reserve at Elk Meadows, LLC,
an Illinois limited liability company, manager
By: Westminster Partners II, LLC,
an Illinois limited liability company, manager
DRAFT
By:
Name:
Title:
Declaration of Covenants Conditions and Restrictions for The Reserve at Elk Meadows PUD Page 62 of 63
STATE OF
COUNTY OF
SS.
The foregoing instrument was acknowledged before me this day of
2006, by as for Reserve at Elk Meadows,
LLC, an Illinois limited liability company authorized to do business in Colorado, managed by
Westminster Reserve at Elk Meadows, LLC, an Illinois limited liability company, managed by
Westminster Partners 11, LLC, an Illinois limited liability company..
WITNESS my hand and official seal.
My commission expires:
O:\WP-DOCS\I.arry Greco \HersheuyMeclaralioo ofCove aolsfor The Reserve al Elk Meadows 5-11-06 wpd
DRAFT
Notary Public
Declaration of Covenants Conditions and Restrictions for The Reserve at Elk Meadows PUD Page 63 of 63
EXHIBIT A
Common Interest Community
All Lots and Tracts of real property depicted on the Final Plat of The Reserve at Elk
Meadows, Filing No. 1, Garfield County, Colorado recorded as Reception No.
, on , 200
EXHIBIT B
Allocated Interests
The Reserve at Elk Meadows
Lots
I Common Expense Liability
Vote
Lots
Each Lot:
Each Lot:
Lots
Each Lot:
Each Lot:
Total Lots:
Total Common Expense
Liability =
Total Votes:
EXHIBIT C
Annexable Property
[To be provided]
EXHIBIT D
Permitted Exceptions
[To be provided]